The Issue Whether proposed amendments to Florida Administrative Code Rule 59G-8.200 are invalid exercises of delegated legislative authority.
Findings Of Fact AHCA is designated as the single state agency for administering the Federal/State Medicaid Program pursuant to Section 409.902, Florida Statutes (2003).2 The Florida Medicaid Developmental Services Home and Community-Based Services Waiver Program (HCBS or DS waiver services) is one of several Medicaid waiver programs. HCBS is designed to provide services to individuals with developmental disabilities to allow them to remain in the community and avoid placement in institutions. AHCA and DCF have entered into an agreement, by which DCF has agreed to implement the HCBS program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS program, and DCF is required to operate the program in accordance with those policies, rules, and regulations. The Florida Association of Rehabilitation Facilities, Inc. (FARF), is a not-for-profit 501(c)3 corporation, and a state-wide association of corporate organizations providing services to handicapped and developmentally disabled persons. Of the 61 members of FARF, 51 are Medicaid home and community- based waiver providers who provide services to developmentally disabled persons, who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. The Association for Retarded Citizens of Florida, Inc. (ARC), a not-for-profit corporation, is a state-wide association which works through advocacy, education, and training to reduce the incidence of mental retardation and other developmental disabilities. It has 43 affiliate chapters located throughout the state. Of those affiliate chapters, 40 are Medicaid providers, which provide Medicaid services to developmentally disabled persons who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. ARC also has approximately 1,500 individual members. Between 25 to 50 percent of the individual members are either self-advocate recipients of services from the HCBS waiver program or family members or guardians of HCBS waiver program recipients. On January 17, 2003, AHCA published a Notice of Rule Development concerning proposed amendments to Florida Administrative Code Rule 59G-8.200. The proposed amendments incorporated by reference changes to a handbook entitled "Developmental Services Waiver Services and Coverage and Limitations Handbook" (Handbook). AHCA published its Notice of Proposed Rule on July 25, 2003. A First Notice of Change was published on October 17, 2003, and a Second Notice of Change was published on November 26, 2003. A Notice of Additional Hearing was published on November 26, 2003, and a final public hearing on the proposed amendments was held on January 6, 2004. The Handbook's purpose is stated in the Handbook as follows: The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients. The Handbook provides that a provider must have a signed DS Waiver Services Agreement with DCF in order to be eligible to provide DS waiver services. The Developmental Disabilities Program Medicaid Waiver Services Agreement (DS Waiver Services Agreement) requires the provider to comply with all the terms and conditions contained in the Handbook for specific services rendered by the provider. During the rulemaking process, AHCA involved stakeholders in the development of the amendments to Florida Administrative Code Rule 59G-8.200, including changes to the Handbook. A stakeholder is an organization or individual who has a primary interest in the HCBS waiver program or is directly affected by changes in the program. At the final hearing, Shelly Brantley, former bureau chief of AHCA's Medicaid Program Development, correctly described ARC and FARF as stakeholders for the HCBS waiver program. Petitioners conducted surveys of their membership to determine whether the proposed changes to the Handbook would adversely affect their members. Surveys were also conducted to determine whether any of the members were small businesses as that term is defined in Section 288.703, Florida Statutes. Of the 51 provider members in FARF, 15 qualified as small businesses having less than 200 employees and less than $5 million in total assets. Of ARC's 40 provider members, 38 met the small business definition of Section 288.703, Florida Statutes. Such surveys by associations provide the type of information that would be commonly relied upon by reasonably prudent persons in the conduct of their affairs. AHCA acknowledged that small businesses would be impacted by the changes to the Handbook, and the impact to small businesses was discussed and considered in developing the proposed rules. As of the date of the final hearing, AHCA had not sent a copy of the proposed rules to the small business ombudsman of the Office of Tourism, Trade, and Economic Development as required by Subsection 120.54(3)(b)2.b., Florida Statutes. Petitioners have alleged that AHCA failed to follow applicable rulemaking procedures by not having the Handbook available at the time of the publication of the notice of rulemaking on July 25, 2003, and the notices of changes published on October 17, 2003, and November 21, 2003. Although the Handbook was incorporated by reference as an amendment to Florida Administrative Code Rule 59G-8.200(12), the major purpose of the amendment was to make changes in the Handbook. The Notice of Rulemaking published on July 25, 2003, provided that the Handbook was available from the Medicaid fiscal agent. However, the revised Handbook was not generally available until August 2003. Further revisions to the Handbook were not readily available at the time the notices of changes were published. The lack of availability of the Handbook on the dates of the publication of the notices did not impair the fairness of the rulemaking proceedings or the substantial interests of Petitioners. Petitioners had an opportunity to review the handbook and to give input to AHCA concerning the proposed changes. Petitioners did get copies of the revised Handbook in time to meaningfully participate in the two public hearings which were held on the proposed rules, and Petitioners had an opportunity to provide written comments on the revisions to the Handbook. At the final public hearing held on January 6, 2004, AHCA provided the participants with a "clean copy" of the Handbook, meaning a copy in which the underlines and strike- throughs had been deleted and the text read as it would read when published in the Florida Administrative Code. This caused confusion among the attendees at the public hearing because "clean copy" Handbooks had not been available to the public prior to the final hearing. With one exception concerning residential habilitation services for children, which is discussed below, the "clean copy" of the Handbook was essentially the same as the version which had been available to the public, in which added language was underlined and deleted language was struck-through. The interests of Petitioners and the fairness of the rulemaking proceedings were not impaired by the use of a "clean copy" of the Handbook at the January 2004 final public hearing. A state Medicaid Agency is required to provide notice to a recipient ten days before the agency takes action to reduce a benefit pursuant to 42 CFR Section 431.200. The evidence did not establish whether AHCA provided notice to HCBS waiver recipients that the proposed changes to the rule would reduce certain benefits. Some of Petitioners' witnesses did not think that any of their individual members received notice, but there was no direct evidence to establish that no notice was provided. Petitioners challenged the following provision of the Handbook: Providers wishing to expand their status from a solo provider to an agency provider, or a provider desiring to obtain certification in additional waiver services must be approved by the district in order to expand. A provider must have attained an overall score of at least 85% on their last quality assurance monitoring conducted by the Agency, the Department, or an authorized agent of the Agency or Department in order to be considered for expansion. Petitioners argue that the language in this portion of the Handbook is vague and gives AHCA unbridled discretion when "considering" a provider for expansion. The language is not vague and does not give AHCA unbridled discretion when a provider is considered for expansion. In order for a provider to be considered for expansion, the provider must have scored at least 85 percent on their last quality assurance monitoring. The 85-percent score is a threshold which the provider must meet before AHCA will determine whether the provider meets other criteria for expansion, which are set out in the Handbook, statutes, and rules. Recipients have a freedom of choice in selecting their service providers from among enrolled, qualified service providers. Recipients may change service providers to meet the goals and objectives set out in the their support plans. Petitioners have challenged the following provision, which AHCA proposes to add to the freedom of choice section of the Handbook: Freedom of choice includes recipient responsibility for selection of the most cost beneficial environment and combination of services and supports to accomplish the recipient's goals. Petitioners contend that the language is vague, arbitrary, and capricious, fails to establish adequate standards for agency discretion, and vests unbridled discretion in AHCA. The term "cost beneficial" is defined in the Handbook to mean "economical in terms of the goods or services received and the money spent." The Handbook also contains the following definition for a support plan: Support plan is an individualized plan of supports and services designed to meet the needs of an enrolled recipient. This plan is based upon the preferences, interests, talents, attributes and needs of a recipient. The recipient or parent, legal guardian advocate, as appropriate, shall be consulted in the development of the plan and shall be receive a copy of the plan and any revisions made to the plan. Each plan shall include the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives and a specification of all services authorized. The plan shall include provisions for the most appropriate level of care for the recipient. The ultimate goal of each plan, whenever possible, shall be to enable the recipient to live a dignified life in the least restrictive setting, appropriate to the recipient's needs. The support plan must be completed according to the instructions provided by the Department. (emphasis supplied) The "most cost-beneficial" language is not new. It already exists in the current Handbook, which is incorporated by reference in Florida Administrative Code Rule 59G-8.200. The proposed amendment does not impose a new requirement on recipients, and it is not vague, arbitrary, or capricious. The "most cost beneficial" language is consistent with the Handbook provision defining the terms "medical necessity" or "medically necessary" as they relate to the determination of the need and appropriateness of Medicaid services for a recipient. One of the conditions needed for a determination that a service is a medical necessity is that the service "be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available, statewide." Petitioners have challenged the following provision of the Handbook: All direct service providers are required to complete training in the Department Direct Care Core Competencies Training, or an equivalent curriculum approved by the Department within 120 days from the effective date of this rule. Said training may be completed using the Department's web- based instruction, self-paced instruction, or classroom instruction. Providers are expected to have direct care staff who are competent in a set of direct care core areas. A curriculum has been developed to provide assistance to the providers in training their direct staff to become competent in these direct care areas. The training curriculum consists of two modules, with three different training formats. Petitioners contend that the curriculum was not completely developed, and would not be in existence at the time the rules are adopted. The Web-based format was completed in the fall of 2003, and the other two formats were completed in the spring of 2004. Thus, the Department's Direct Care Core Competencies Training is available. Petitioners have challenged the following provision of the Handbook: The current Department approved assessment, entitled Individual Cost Guidelines (ICG), is a tool designed to determine the recipients' resource allocations of waiver(s) funds for recipients receiving supports from the State of Florida, Department of Children and Families, Developmental Disabilities Program (DDP). The ICG is a validated tool that provides a rational basis for the allocation of the waiver funds to individuals with developmental disabilities. Waiver(s) funds refers to funds allocated through the Developmental Services HCBS waiver, the Supported Living Wavier, and the Consumer- Directed Care Plus waiver (CDC+). The instructions for the completion of this assessment is provided by the Department and is completed at least every three years or as determined necessary by the recipient and the waiver support coordinator, due to changing needs of the recipients. It is Petitioners' contention that the ICG, like the Direct Care Core Competencies Training, was not completed and would not be available to the providers prior to the adoption of the proposed rules. The ICG was completed in the fall of 2003. Its validity and reliability as an assessment tool for assessing needs of individual recipients has been tested. During September and October 2003, a three-day workshop was held in every district of DCF for the purpose of training workers to administer the ICG. The first day of the workshop provided an overview for interested persons. Hardcopies of the ICG were handed out for review by the participants, including providers. Petitioners have challenged the portion of the Handbook which provides, "[t]he primary live in support worker shall be named on the lease along with all other recipients." It is Petitioners' position that the proposed language is in conflict with unchallenged language in the proposed Handbook and is contrary to the guidelines in the State Medicaid Manual. The unchallenged portion of the Handbook at page 2-77 provides: The in-home support provider or the provider's immediate family shall not be the recipient's landlord of have any interest in the ownership of the housing unit as stated in Chapter 65B-11.005(2)(c), F.A.C.[3] If renting, the name of the recipient receiving in-home support services must appear on the lease singularly or as a guarantor. The State Medicaid Manual provides at page 4-450, subsection 12, that "FFP for live-in care givers is not available in situations in which the recipient lives in a caregiver's home or a residence owned or leased by the provider of Medicaid services." AHCA contends that the purpose for requiring the live- in support worker to sign the lease is to prevent the live-in home support worker (worker) from taking advantage of the recipient by failing to contribute anything to the normal living expenses. Having the worker named on the lease does not guarantee that the worker will pay his or her portion of the rent. The recipient is still liable to the landlord whether the worker pays, and the worker would be liable whether the recipient paid. The unchallenged portion of the proposed changes to the Handbook provides that the worker must pay an equal share of the room and board for the home. Having the worker on the lease poses problems when the worker is no longer providing services. The landlord may not be willing to renegotiate the lease by substituting another worker on the lease. Additionally, the worker may not wish to vacate the premises just because he or she is no longer providing services, and, since the worker is a lessee of the property, the recipient may have to find new quarters if the recipient does not desire to share the home with the worker. Petitioners have challenged the portion of the Handbook which provides that "[t]he amount of respite services are determined individually and limited to no more than thirty (30) days per year, (720 hours) per recipient." Respite care is defined in the Handbook as "a service that provides supportive care and supervision to a recipient when the primary caregiver is unable to perform these duties due to a planned brief absence, an emergency absence or when the caregiver is available, but temporarily unable to care for or supervise the recipient for a brief period of time." Respite care services are designed to be provided for a short time. In determining the amount of time to limit respite care, AHCA reviewed historical data and did not find that many individuals used respite care service for more than two weeks. Stakeholders, family members of recipients, and recipients were involved in discussions with AHCA concerning the time limitation to 30 days. AHCA reviewed other waiver state agencies and found that waivers for individuals with developmental disabilities have similar limits on respite care. Individuals whose primary caregiver may become unavailable for a period of greater than 30 days may receive other types of services to assist them while their caregivers are absent. The types of services that may be available are determined on a case-by-case basis. Petitioners have challenged the portion of the Handbook which provides: III. FINES AND PENALTIES In accordance with the provisions of Section 402.73(7), Florida Statutes, and Section 65-29.001, Florida Administrative Code, penalties may be imposed for failure to implement or to make acceptable progress on such quality improvement plans as specified in Section II.A of this Agreement. The increments of penalty imposition that shall apply, unless the Department determines that extenuating circumstances exist, shall be based upon the severity of the non-compliance, non-performance or unacceptable performance that generated the need for a quality improvement plan. The penalty, if imposed, shall not exceed ten percent (10%) of the total billed by the provider for services during the period in which the quality improvement plan has not been implemented, or in which acceptable progress toward implementation has not been made. This period is defined, as the time period from receipt of the report of findings to the time of the follow-up determination that correction or progress toward improvement has not been made. Non-compliance that is determined to have a direct effect on individual health and safety shall result in the imposition of a ten percent (10%) penalty of the total payments billed by the provider during the period in which the quality improvement plan has not been implemented or in which acceptable progress toward implementation has not been made. Non-compliance involving the provision of training responsibilities or direct service to the individual not having a direct effect on individual health and safety shall result in the imposition of a five percent (5%) penalty. Non-compliance as a result of unacceptable performance of administrative tasks, such as policy and procedure development, shall result in the imposition of a two percent(2%) penalty. In the event of nonpayment, the Department will request the Agency for Health Care Administration deduct the amount of the penalty from claims submitted by the provider for the covered time period. This penalty provision is contained in the DS Waiver Services Agreement contained in Appendix B of the Handbook. The providers are required to complete the agreement to provide services to recipients and are required to comply with the terms and conditions of the agreement. Although the agreement is between the Developmental Disabilities Program of DCF and the providers, DCF is entering into the agreement pursuant to an interagency agreement between DCF and AHCA that DCF will operate the waiver program on behalf of AHCA. AHCA establishes the rules, policies, procedures, regulations, manuals, and handbooks under which DCF operates the program. The inclusion of the penalties provision in the agreement is done based on the authority of Subsection 402.73(7), Florida Statutes, and Florida Administrative Code Rule 65-29.001, which govern the authority of DCF, not AHCA. If AHCA seeks to impose penalties on providers relating to the waiver program, it can do so only based on its statutory authority. DCF merely stands in the shoes of AHCA and has only the authority for the operation of the waiver program that AHCA would have if AHCA were operating the program itself. Petitioners have challenged the portion of the Handbook which reduces the maximum limits of residential habilitation services from 365 days to 350 days. AHCA contends that the reduction of days is merely a reduction in the maximum number of days that a provider can bill for residential habilitation services. The rate at which the provider is being compensated includes a 15-day vacancy factor. The State Medicaid Manual from the Center for Medicare and Medicaid allows for this type of reimbursement and provides: FFP [federal financial participation] is not available to facilities providing services in residential settings on days when waiver recipients are temporarily absent and are not receiving covered waiver services (sometimes called reserve bed days). Medicaid payment may be made only for waiver services actually provided to an eligible recipient. Since providers incur fixed costs such as rent, staff salaries, insurance, etc., even when a waiver recipient is temporarily absent, you may account for such continuing costs when developing payment rates for these providers. For example, rent is generally paid for a period of 1 month. However, day habilitation services are generally furnished only 5 days per week. You may take the entire month's rental cost into consideration in setting the rate paid for services furnished on the days the recipient is present. Similarly, if data shows that a recipient is served in residential habilitation an average of 325 days per year and the slot is held open when the recipient is on a leave of absence, you may consider the entire yearly cost to the provider when establishing its rate of payment. However, in the rate setting process, it must be assumed that a facility will not have a 100 percent utilization rate every day of the year. Consequently, payment rates are established by dividing the provider's total allowable costs by the number of Medicaid patient days you estimate recipients will actually utilize. The change from 365 days to 350 days is not a reduction in service, it is a reimbursement method which utilizes a 15-day vacancy factor. The number of days chosen was based on information furnished by the providers to AHCA during a survey completed in July 2003. Based on the survey, it was concluded that the providers billed for services for 345 to 350 days per year. Contrary to its present position, Petitioner FARF took the position early in the rulemaking procedure that billing on a 365-day year would be harmful to the providers. In a letter to AHCA dated February 4, 2003, Terry Farmer, CEO of FARF, advised: Attached is a compilation of written comments from Florida ARF members on the proposed rule #59G-8.200, titled "the Home and Community Based Services Waiver." * * * Going to the 365 day billing schedule will create hardships for consumers, families and providers because it discourages weekly home visits and doesn't address frequent hospitalizations or vacations. The 15 day down factor is very low for consumers who want to go home 2-3 times a month and would also like a yearly vacation. Recommendation: Increase the down factor to 5 days per month (60 days per year) to accommodate for absences in order to reduce the negative impact of home visits and vacations upon both the consumer and group home provider. This is particularly important when the focus is on meeting Personal Outcomes that may result in the consumer being away from the group home. Petitioners have challenged the portion of the Handbook which deleted the following provision: Residential habilitation services may be provided to children residing in a licensed facility or children with severe behavioral issues living in their family home. The child must have a written behavior analysis service plan that is written and monitored by a certified behavior analyst, in order for the services by a behavior assistant to be reimbursed under residential habilitation. The focus of the service is to assist the parents in training and implementing the behavior analysis services plan. At the final hearing, AHCA conceded that it was in error when it deleted the language relating to the provision of residential habilitation services to children and stated that the language would be reinstated. Section 409.908, Florida Statutes, provides: Subject to specific appropriations, the agency shall reimburse Medicaid providers, in accordance with state and federal law, according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference therein. AHCA set out its rate methodology for Developmental Services Home and Community Based Services rate reimbursement in Appendix A of the Handbook. Petitioners have challenged the rate methodology, stating that it was vague, failed to establish standards for agency discretion and vested unbridled discretion in AHCA's determination of rate reimbursement. The rate of reimbursement cannot be determined based on rate methodology. However, based on a reading of the introductory language to the rate methodology, it does not appear that it was the intent of AHCA to be able to determine the rates by using the rate methodology in Appendix A, and staff of AHCA readily admit that a specific rate for a specific service cannot be determined using the language in the methodology alone. The first paragraph of the methodology states: The following section describes key aspects of the Developmental Services (DS) Home and Community Based Services (HCBS) rate reimbursement structure. Specifically the cost items for each rate component are listed, agency and independent contract status is defined, and the rate structure for various services is described. It appears that the methodology set out in Appendix A is an overview of the process that was used in determining the rates. AHCA is in the process of developing rules that set out the actual rates that will be used. Petitioners have challenged the portion of the Handbook which provides that the maximum limit for adult day training is 240 days, a reduction from 260 days. The reduction of adult day training days is a limitation on services and a limitation on billing. The rate for providing adult day training contains a similar vacancy factor as contained in the rate for residential habilitation services. The purpose of adult day training is to provide training for skills acquisition. Adult day training is provided five days a week, meaning that the maximum time any recipient could spend in adult day training is 260 days a week. However, adult day training is not provided 260 days a year. No training is provided on holidays such as Christmas, Thanksgiving, Memorial Day, Labor Day, and other normal holidays. Generally, individuals do not attend training 260 days a year for other reasons such as hospitalizations. In determining that 240 days would be sufficient in amount, duration, and scope, AHCA contacted providers and learned that recipients generally do not receive adult day training more than 240 days per year.
The Issue The issues in this case are whether Respondent received Medicaid overpayments that Petitioner is entitled to recoup, and whether fines should be imposed against Respondent.
Findings Of Fact AHCA is the single state agency responsible for administering the Medicaid program in Florida. The Medicaid program is a federal and state partnership to cover the costs of providing health care and related services to persons meeting certain criteria, such as persons with very low income or persons with certain developmental disabilities. For persons with developmental disabilities, Florida developed a program designed to identify those who could receive needed services in their homes and communities, instead of in institutional settings. To use the state-federal Medicaid funds for home and community-based services, instead of institutional care, Florida was required to obtain a waiver from the federal government by demonstrating that its program presented a less- costly and more-effective alternative to institutionalization. This program, approved for certain developmentally disabled Medicaid recipients, is known as the Home and Community-Based Waiver (HCB waiver). Under the HCB waiver, services are planned for each developmentally disabled recipient according to the recipient's particular needs and described in a detailed support plan. The support plan articulates the goals for each type of needed service and is updated annually. A service authorization is developed from each support plan to specify the amount, by time and dollars, approved for each type of service. The support plan and service authorization documents also identify which Medicaid- contracted providers will be providing each of the approved services. At all times material to this case, Access Road has been a provider of HCB waiver services to Medicaid recipients, pursuant to a Medicaid provider contract with AHCA. Access Road's Medicaid provider number is 681213996. Between January 1, 2007, and December 31, 2008, Access Road provided HCB waiver services to a total of 16 Medicaid recipients. Fourteen recipients received services throughout the two-year period. Two recipients received services for only a short period of time near the end of the two-year period. During this two-year time period, Access Road provided four types of HCB waiver services: personal care assistance; companion care; respite care; and non-residential support. Each of these services is billed in quarter-hour units of service provided on a single day so that a claim for 16 units of service would represent that the service was provided for four hours that day. For the two-year period at issue, Access Road submitted a total of 12,927 claims for reimbursement for services provided to the 16 Medicaid recipients. For those claims, Access Road billed Medicaid and was reimbursed a total of $809,374.42. By entering into Medicaid provider agreements with AHCA, providers such as Respondent agree to "maintain and make available in a systematic and orderly manner," as AHCA requires, all Medicaid-related records for a period of at least five years. In addition, providers agree to send "at the provider's expense, legible copies of all Medicaid-related information" to authorized state and federal employees. These contractual agreements are also requirements of Florida's Medicaid laws and rules, including the Medicaid provider handbooks that are promulgated as rules. AHCA is responsible for conducting investigations and audits to determine possible fraud, abuse, overpayment, or neglect, and must report any findings of overpayment in audit reports. AHCA need not have any particular reason or cause for initiating investigations and audits of Medicaid providers. AHCA is not only authorized to conduct random audits; AHCA is required to conduct at least five percent of its audits on a random basis. In this instance, in early 2010, some question about Respondent's billings arose from a cursory review by the AHCA field office in Respondent's area. The nature of the field office's review or question about Respondent's billings was not established, but is not material, as it is only germane as background explanation of how this matter arose. The result of the area office's question about Access Road's billings was that the MPI Bureau decided to conduct an audit investigation of Respondent, as it is authorized to do, and a referral was made to MPI investigator Kristin Koelle. The purpose of the Medicaid audit was to verify that claims for which Respondent has already been paid by the Medicaid program were for services that were provided, billed, and documented in accordance with Medicaid statutes, rules, and provider handbooks. While Respondent certifies with each claim submission that the claim is proper and that all records required to be maintained in support of each claim are in fact being maintained, the audit goes behind that certification by actually reviewing those records. In setting the audit period, AHCA has up to a four-year range. The end point is set by going back at least one year, since providers have one year to submit and adjust claims. The beginning point is set no more than five years back, which is the record retention period. In this case, within the allowable four-year range, AHCA chose two years, January 1, 2007, through December 31, 2008. The next step in the audit process is to determine the population of recipients and claims for which records will be requested for review. When AHCA audits a Medicaid provider for possible overpayments, it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population, . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. (2007).3/ The audit methods used depend on the characteristics of the provider and of the claims. For example, where a provider serves thousands of Medicaid recipients during the audit period, but for each recipient, there are not many claims, such as might be the case for a hospital provider, then AHCA may use a single- stage cluster sampling methodology. Under this approach, a random sample of recipients is selected, and then all claims are examined for the recipient sample group. Alternatively, where there are too many claims to review all of the claims for each recipient or to review all claims for a sample group of recipients, a two-stage cluster sample methodology may be used, whereby a random sample of recipients is first selected and then random samples of the claims for the sample group of recipients are selected. Because of the extremely high volume of claims generated by Respondent during the audit period, Ms. Koelle determined with her supervisor that a two-stage cluster sampling methodology would be used. AHCA utilizes a computer program to carry out the random sampling selection once the method is chosen, so Ms. Koelle was able to select the two-stage cluster sampling method and, with the provider number and audit period, the computer drew from the claims database to make the random selection of the samples to be reviewed. As a general target, AHCA considers 30 recipients to be a reasonable sample size for the first stage of two-stage cluster sampling. This target sample size assumes that there are many more than 30 recipients. Since Access Road only served 16 recipients over two years, the computer selected all 16 recipients for review. AHCA's expert credibly explained that while a selection of all recipients is an unusual application of the concept of random sampling, it is an appropriate result that comports with the technical meaning of random sample: a sample chosen whereby all possible samples of the same size are equally likely to have been chosen. Thus, AHCA's expert opined that this audit involved an entirely correct and reasonable, albeit atypical, application of two-stage cluster sampling.4/ Given that AHCA's standard rule of thumb is to include 30 recipients in the "sample" group, it is apparent that what is atypical here is that the provider served only 16 Medicaid recipients over the audit period. Given the small number of recipients served, review of all 16 recipients was feasible and could only increase the reliability of AHCA's review, as AHCA's expert confirmed.5/ It was not feasible, however, to review all 12,927 claims generated by those 16 recipients, nor, presumably, would Access Road want to have been burdened with producing all records to support its 12,927 claims. As a general target, AHCA considers samples of between five and 15 claims, per recipient, to be reasonable sample sizes for the second stage of two-stage cluster sampling. Accordingly, the computer selected 219 claims, representing between five and 15 claims for each recipient in accordance with AHCA's standard. AHCA's expert opined that the sampling method used in this case was reasonable and comported with generally accepted statistical methods. His opinions and explanation were credible, were unrebutted, and are accepted. Respondent's attempt to undermine the expert's opinions, through cross-examination and argument in Respondent's PRO, was ineffective and lacked the support of contradictory expert testimony regarding generally accepted statistical methods. By letter to Access Road dated May 11, 2010, AHCA requested copies of all documentation supporting the 219 claims that were the sample group of claims for the 16 recipients. Access Road also was asked to produce specified staff records, to document that the individuals providing the services represented by the 219 claims were qualified to do so and had met background screening requirements. With its production, Access Road was required to execute a certificate of completeness attesting that all supporting documentation for the 219 claims had been produced. The May 11, 2010, letter stated that the documentation was due within 21 days from the letter's receipt, but added that Access Road should submit the documentation and certificate of completeness "within the requested timeframe, or other mutually agreed upon timeframe." Respondent did not request a different deadline. Instead, Respondent sought clarification of the documentation that had to be produced and then sent a package with documentation and a certificate of completeness, by which Respondent certified to AHCA that all documentation to support the specified billings was included. Ms. Koelle contacted Access Road after reviewing the documentation, because she was unable to determine from what was submitted that all staff were qualified or had undergone background screening. Ms. Koelle allowed Access Road additional time to submit any further documentation to address the omissions she had identified. After the additional time for staff-related documentation, Ms. Koelle conducted her audit of the 219 claims. Ms. Koelle assessed the documentation for each claim by reference to the requirements in Medicaid provider handbooks, as well as the specific service authorizations and support plan goals for each recipient. Each of the 219 claims was either allowed, denied, or adjusted to reduce the amount of the claim for reasons set forth in detailed audit work papers. Ms. Koelle input the audit results on the 219 claims-- approved, denied, or adjusted--into the computer that was programmed to carry out the two-stage cluster sampling methodology by extending the results of the claims sample reviewed to the entire claims population. The result was a preliminary audit determination that Respondent had been overpaid $219,810.12. The results of Ms. Koelle's review were summarized in a Preliminary Audit Report (PAR). The reasons for the denied and adjusted claims were grouped in two broad categories: incorrect, illegible, or insufficient documentation; and overbilling leading to overpayment. The first category included claims for services provided by ineligible or unqualified staff, claims for services with no documentation, and claims for services for which no activities were documented on a service log. The second category included claims for which the number of units of service billed was not supported by the documented activities, claims that billed for more units of service than were documented, and claims for services and activities beyond the scope of services authorized in the recipient's support plan or service authorization. The PAR and the audit work papers were sent to Respondent on June 22, 2010. Respondent was advised that additional documentation could be submitted by a specified deadline in support of claims identified as overpayments. However, in bold print, the PAR warned Respondent that while any additional submittals would be reviewed and could change the treatment of claims, "additional documentation may be deemed evidence of non-compliance with the Agency's initial request for documentation in which [Respondent was] required to provide all Medicaid-related records. Sanctions for this non-compliance will be imposed." Respondent submitted additional documentation by the specified deadline. Ms. Koelle repeated the process of reviewing the new submittals, and in some instances, approving claims that were preliminarily denied. Ms. Koelle repeated the process of inputting the revised determinations into the computer, which repeated the extension of the overpayments within the sampled claims to the entire claims population for the 16 recipients. The result was a reduced overpayment determination, which was set forth in the FAR, of $159,741.86. The reasons for the denied and adjusted claims were grouped in the same two categories and included the same problem areas that had been summarized in the PAR. The FAR determined that a total of 55 claims, representing 25.11 percent of the sample group of claims, were denied, in whole or in part, for documentation deficiency reasons (the first category); and an additional 16 claims, representing 7.31 percent of the sample claims reviewed, were denied, in whole or in part, due to overbilling (the second category). In total, nearly one-third-- 71 of the 219 claims reviewed--were found in the FAR to involve overpayments. As Respondent was warned, the production of additional documentation after the PAR resulted in the FAR's imposition of a $1,000 fine for failing to provide all Medicaid-related records within the timeframe requested in the May 10, 2010, records request. The FAR also imposed a fine of $2,500 for Respondent's failure to follow Medicaid laws, rules, and provider handbooks. Petitioner submitted in evidence the FAR and the audit work papers standing behind the FAR's determinations, including Ms. Koelle's worksheets stating the reasons for denying or adjusting specific claims and the provider documentation that was submitted and available for review of the claims that were adjusted or denied. At hearing, Respondent did not offer any evidence or testimony to refute or impeach the audit findings or to supplement the documentation relevant to the denied or adjusted claims beyond what was provided in Petitioner's audit work paper exhibits. In its PRO, Respondent presented argument disputing the findings on 15 claims for eight recipients. Thus, Respondent presented no evidence and no argument to refute AHCA's overpayment determinations for 56 of the 219 claims reviewed. The disputed claims, audit findings, and Respondent's argument are summarized below. Recipient No. 1, Claim 5: This claim was for 20 units of service (5 hours) for personal care assistance on December 10, 2007. The claim was denied based on insufficient documentation, "no activities documented on service log." Respondent's PRO argues that the audit work papers only include a service log for the week that included December 10, 2008, whereas the documentation for this claim would have been on a different service log for December 10, 2007. However, Respondent failed to offer in evidence a service log covering December 10, 2007, which Respondent claims would have documented that personal care assistance was provided on December 10, 2007, as would be necessary to rebut Petitioner's audit findings of insufficient documentation. It is possible that the service log in the audit work papers was dated incorrectly, or it may be that there was no other service log with an entry for December 10, 2007. Regardless, there is no evidence of sufficient documentation for this claim. Recipient No. 1, Claim 6: This claim was for four units of respite care service on January 7, 2008. The claim was denied because there was no service log. Ironically (juxtaposed with the last challenge), Respondent asserts that a service log in the audit work papers for the week ending January 13, 2007, is the correct service log, but that it was dated incorrectly. Even if Respondent's assertion (not supported by any testimony or evidence) is correct, Respondent overlooks the fact that the misdated service log would support Petitioner's denial of Claim 6, because that service log has no respite care entry on January 7, 2007. Therefore, either because there is no service log at all for January 7, 2008, or because the service log for January 7, 2007, contains no respite care hours, Claim 6 was properly denied. Recipient No. 1, Claim 7: Claim 7 was for four units of respite care service on January 25, 2008. The claim was denied, again because there was no service log. A service log in the work papers for the week including January 25, 2008, shows zero hours of respite care on January 25, 2008, but four hours of respite care each on January 26 and 27, 2008, which was all the respite care authorized for the week. Respondent claims in its PRO, with no supporting documentation or testimony, that there was a clerical error. According to Respondent's PRO assertion, respite care was provided to Recipient No. 1 on Friday, January 25, 2008, as billed, but was incorrectly recorded on January 26, 2008. But Respondent's PRO assertion is not evidence and cannot be the basis for a finding of fact. The fact remains that Respondent billed Medicaid for respite care services provided on January 25, 2008, and was paid for those services, but there is no documentation that the services were provided. Moreover, no evidence was offered to show that Respondent was not paid for all of the documented respite care hours on January 26, 2008, which Respondent now claims were not all provided that day. Recipient No. 2, Claim 8: Respondent billed Medicaid for 28 units (seven hours) of companion care services on February 10, 2008. The claim was adjusted by disallowing 14 units of service, based on the finding that the documentation does not support the number of units of service billed. The only documentation describing the companion care services provided was the following statement signed by the provider: "Today we went to the Library. She was very happy looking at different magazines and to [sic] different books. She was seating [sic] for a while watching the books." Respondent argues in its PRO that Petitioner arbitrarily reduced the claimed units, because the documentation is sufficient to establish the activity, even if all things done at the library were not listed. However, AHCA reasonably found excessive a claim for seven hours at a library to look at magazines and books, absent more detail and more information, which Respondent failed to provide by way of testimony or documentary evidence. Respondent's arguments that the documentation was "sufficient to establish the activity" and the reduction was "arbitrary," are not evidence to refute the contrary finding that the units billed were excessive. Recipient No. 2, Claim 15: This claim was for eight units of personal care assistance on October 16, 2008. The claim was denied due to lack of a service log. Respondent points out that there is a service log, showing two hours (eight units) of personal care assistance on October 16, 2008. However, there is an unexplained anomaly on this service log. The service log is filled out, in part, by typewriting and, in part, by handwriting. Typewritten in the blank for the total number of personal care assistance hours for the week was ten hours, but in handwriting, the "0" was changed to a "2," changing the total to 12 hours. The daily entries, all typewritten, add up to 12 hours. Therefore, AHCA could reasonably question this claim, without explanation of the service log anomaly. If the total hours of personal care assistance that week was actually ten, it may be that the entry of two hours for October 16, 2008, was not done contemporaneously with the service, but, rather, at the end of the week when the document was signed, and it became apparent that there was a shortage of personal care assistance hours that week. While bad motives are not attributed to Respondent or to the individual caregiver who completed the form, the anomaly on the form is sufficient to support Petitioner's audit finding, and Respondent has failed to rebut that finding with evidence explaining the anomaly in the documentation. Recipient No. 3, Claim 12: This claim was for 20 units (five hours) of respite care service on June 20, 2008. The claim was denied based on a finding of no documentation to support the billing. The service log for that week shows zero hours of respite care on June 20, 2008, a Friday. Five hours of respite care was provided on each weekend day, for a total of ten hours, which was all that was authorized. Respondent argued in its PRO that this was another clerical error, and the amount billed is documented under June 21 and June 22, 2008. Once again, however, Respondent provided no testimony or evidence to support this assertion. Once again, the fact remains that Respondent billed Medicaid for respite care services provided on June 20, 2008, and was paid for those services, but there is no documentation that they were provided. And once again, Respondent failed to prove that it was not reimbursed for the claimed respite care on the days on which Respondent now claims the service was not actually provided. Recipient No. 6, Claim 5: Respondent billed Medicaid for four units of companion care service on May 15, 2008. This claim was denied because the documented activities billed under companion care--meal preparation and washing dishes--were unauthorized by the support plan for companion care services. Respondent argued in its PRO that teaching a recipient meal preparation is a "meaningful activity." However, the issue is not whether it is "meaningful," but whether it is an authorized activity as part of the companion care service authorization. According to the support plan, the recipient was also authorized to receive personal care assistance. Personal care assistance was authorized to maintain the recipient's hygiene and help with his personal care needs. Companion care was authorized to give the recipient meaningful days to visit places and make new friends. Meal preparation and washing dishes fall within the personal care assistance category and not within the authorized companion care, as described in the support plan. This claim was properly denied. Recipient No. 9, Claim 12: This claim was for 24 units of companion care service on May 14, 2008. The claim was adjusted, allowing three hours instead of the six hours claimed, based on a finding that the documentation did not support the number of units billed. The only documentation describing what was done in this six-hour period was "parks," with no additional detail or information to justify the amount of time claimed. With the absence of detail, AHCA reasonably found that a six-hour claim for "parks" was excessive. Respondent argued in its PRO that the activity is appropriate, and the number of units billed is in line with the service. Respondent presented no evidence to establish the facts or opinions argued in its PRO. Respondent's unsupported assertions are not evidence to refute the contrary finding that the claim was excessive. Recipient No. 14, Claim 1: This claim was for 16 units of non-residential support services on January 2, 2007. The claim was denied on the basis of insufficient documentation, as there was no daily progress note. Respondent argues that the weekly service log is sufficient documentation. The service log for the week including January 2, 2007, shows that non- residential support services were provided from 8:00 a.m. to 12 noon on three consecutive days--January 1, 2, and 3, 2007. No information is provided regarding the activities done each day. Instead, a single-block description is provided, presumably of all activities done over the three-day, 12-hour period. The description was: Get in order all of his money Get in order gift certificates [Illegible]ing money The support plan goals for non-residential support services for this recipient were to help the recipient learn the value of money, learn to make purchases, and pay for them. Respondent argues in its PRO that the activities summarized above for the three-day period are "geared toward the recipient's stated goals[.]" While that is apparently true, the summary is inadequate to justify the claim for four hours each day for a three-day period. As Petitioner notes in the audit, there should be daily progress notes specifying what was done each day. Indeed, daily progress notes are required by the Developmental Disability Waiver Services Coverage and Limitations Handbook (Waiver Handbook). See Waiver Handbook, Ch. 2-55, Non- Residential Support Services, Documentation Requirements, No. 5 ("Daily progress notes for each day services were provided."). Recipient No. 15, Claim 9: Respondent billed Medicaid for 32 units (eight hours) of companion care services on May 10, 2008. AHCA adjusted the claim to allow 14 units of service. AHCA denied 16 units of service because the documentation did not support the amount billed. Two units of service were denied for time spent doing laundry, an unauthorized activity for companion care. The service log showed that on May 10, 2008, companion care was recorded from 11 a.m. until 7 p.m., a total of eight hours. In addition, another four hours were logged for personal care services, described as shampoo, bathroom cleaning, bedroom cleaning, and laundry. The description of the companion care services for that day was "restaurant" and "laundry." Respondent argued in its PRO that the claim was directly connected to the goals for recipient no. 15, which include activities to reduce depression and avoid suicidal tendencies. However, Respondent failed to address the points made in the audit--that the documentation does not support the number of units of service claimed and that laundry is an authorized activity for personal care assistance, not companion care. Petitioner's auditor reasonably found that eight hours for "restaurant and laundry" were excessive, and, indeed, Petitioner was generous in allowing three and one-half hours for "restaurant," while disallowing only one-half hour billed as companion care for doing laundry. The claim was properly adjusted; Respondent offered no evidence or argument to the contrary. Recipient No. 16, Claims 3, 4, 5, 7, and 8: These claims were each for 12 units of companion care services on different days. Each of these claims was adjusted by subtracting one unit of service from the 12 units claimed, because the documentation showed that an unauthorized activity--feeding--was included. The applicable support plan authorized companion care services for the following goals: "Wants to have meaningful days and socialize as well as buy things of his interests; Wants to go to the library to get videos." The recipient was also authorized for personal care assistance provided by a different provider (not Respondent) to meet the following goal: "Wants to be helped with his personal care needs." Respondent argued in its PRO that the recipient needs to be fed through a bag and learn how to perform personal care, so these are activities for which he needs assistance. Respondent's argument, unsupported by any testimony or documentary evidence, misses the point. The recipient was indeed authorized to receive "help with his personal care needs," but the authorized service for that activity was personal care assistance, not companion care, to be provided by a different provider, not Respondent. Respondent failed to refute the finding that the claims included an unauthorized activity. Petitioner reasonably adjusted these claims by deducting one unit of service from each claim. Petitioner's Costs Petitioner presented an exhibit at hearing, updated after the hearing, setting forth its investigative and expert witness costs. Respondent did not object to or dispute the reasonableness of Petitioner's documented costs. Through the final hearing, Petitioner's total investigative and expert witness costs were $4,087.19. Respondent took the opportunity offered to respond or object to Petitioner's updated cost submittal, but Respondent's response did not actually respond or object to Petitioner's updated costs. Instead, Respondent asserted that an offset should be applied to reduce any award of Petitioner's costs by what would be, in effect, a discovery sanction. Respondent's request for an offset is based on the apparent fact that in pre-hearing discovery, counsel for Petitioner agreed to make AHCA's expert witness available for deposition in Tallahassee. Although the expert witness appeared for his deposition, he had not yet reviewed the case material because the file had not yet made its way into his hands. Counsel for Respondent traveled to Tallahassee for the deposition and for business of other clients. After the deposition, counsel for AHCA expressed his apologies, and although he could not commit, he stated he would attempt to get some cost reimbursement for Respondent. Apparently, that never happened. Respondent now seeks recovery of costs for attending a deposition that had to be rescheduled after AHCA's expert witness was better prepared. Even if Respondent had timely filed a motion shortly after this occurrence for costs imposed as a discovery sanction, Respondent offers no authority for ordering reimbursement of costs under these circumstances. Respondent could have subpoenaed the expert and the necessary documents for deposition; Respondent could have asked for entry of an order of pre-hearing instructions to impose requirements on expert witness discovery; Respondent took none of these steps. No subpoena was violated; no pre-hearing order was violated; no rule of civil procedure for discovery was violated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Juana Rodriguez, d/b/a Access Road, Inc.: To repay the sum of $159,741.86, for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; To pay interest on the sum of $159,741.86 at the rate of ten percent per annum from the date of the overpayment determination; To pay a fine of $1,000 for failure to furnish all Medicaid-related records within the requested timeframe; To pay a fine of $2,500 for the patterned violations of the requirements of Medicaid laws, rules, and provider handbooks; and To pay $4,087.19 to reimburse Petitioner for its costs. DONE AND ENTERED this 26th day of March, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 March, 2012.
The Issue The issue in this case is whether the Petitioner's request that the Respondent pay for certain supplies may be denied based on Respondent's limited funding and on Respondent's spending priorities as set forth in a Spending Plan.
Findings Of Fact The Petitioner, Bernice Simon, as a result of having spina bifida, is incontinent of both bowel and bladder. She needs incontinence supplies, and will continue to need such supplies in the future. All parties agree that the Petitioner has a medical need for the incontinence supplies she seeks to have the Respondent continue to provide. On April 19, 2001, Bernice Simon signed a Notice of Eligibility for ICF/DD and Developmental Services Home and Community-Based Services Waiver. It stated "This is to inform you that Bernice Simon has been determined eligible for ICF/DD services or the Developmental Services Home and Community-Based Services Waiver." The form indicates "Client doesn't want the Medwaiver at this time. She can apply in future if she changes her mind." On October 18, 2001, Human Services Counselor Christina Tookes notified Ms. Simon: "I regret to inform you that unless you apply for the Waiver we are unable to provide services at this time. Be also advised that the Department, at this present time, are [sic] not providing any new service to any consumers until further notices by our Legislators from Tallahassee. This is unfortunate, but we are instructed to follow guidelines and procedures mandated by our Department Heads." On March 15, 2002, Ms. Simon was notified that incontinence supplies were terminated due to insufficient funds with which to continue funding the service. The Spending Plan Instructions states include the following: The 2001 Florida Legislature appropriated additional funds for the Developmental Disabilities Program to serve additional persons and annualize services begun during state fiscal year 2000-2001. In order to accomplish the goals established by the Governor and the Legislature, it is imperative that the approved spending plan be implemented and followed. Approved prioritization schedule and policy decisions must be implemented in order to be able to serve the number of individuals funded for state fiscal year 2001-2002. Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. . . . 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. Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, 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. 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. The Petitioner was informed of the scope, intensity, and duration of services for which funding by the government was available. She was notified repeatedly that services might be discontinued. By reason of their assets and income, the Petitioner and her husband are not eligible for enrollment in the Home and Community-Based Medicaid Waiver Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the petition in this case. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. 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 6th day of September, 2002. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Bernice Simon 6768 10th Avenue, North, Number 101 Lake Worth, Florida 33467 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2: The Respondent had voluntarily surrendered the license for this assisted living facility and voluntarily closed this assisted living facility. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Ss The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially Filed November 3, 2014 4:29 PM Division of Admihistrative Hearings affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 6. The Respondent shall pay the Agency $6,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 7. The Agency’s Bureau of Central Services and the Assisted Living Unit shall maintain an alert on the Respondent’s controlling interest, Aida Salgueiro, in order to ensure compliance with the terms of the Settlement Agreement. ORDERED at Tallahassee, Florida, on this ro 2) day of Crctotecr _ , 2014. ek, Secretary alth Care Administration Elizabeth Agency for
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to 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 of 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. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_cgpy of this Final Order was served-6n the below-named persons by the method designated on this 52>-day of TE , 2014. 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Catherine Anne Avery, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration Alba M. Rodriguez, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Aida Salgueiro Medicaid Contract Management Pretty Family Home Care Agency for Health Care Administration 2980 S.W. 103" Court (Electronic Mail) Miami, Florida 33165 (U.S. Mail) Ashley Jenkins Brian J. Perreault, Jr. Bureau of Central Services Lydecker Diaz Agency for Health Care Administration (Electronic Mail) 1221 Brickell Avenue, 19" Floor Miami, Florida 33131-3240 (U.S. Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue in this proceeding is whether Petitioner Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental services or remain on a waiting list for such services until funding is available.
Findings Of Fact At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan 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 Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program. Ryan became a client of Developmental Services on June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 1999. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services. The Department's Legislative Budget Request for fiscal year 1999-2000, included 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. 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 such programs must be prioritized. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act: . . . Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of 2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services. However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services. 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 static, the new client base has increased by approximately 8,000 clients since July 1, 1999. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, 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 in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. 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. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did 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 Ryan Flint on the waiting list of clients to be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 January, 2001. COPIES FURNISHED: Madeline Flint 1327 Conservancy Drive Tallahassee, Florida 32312 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 Whether Petitioner, a home and community support services coordinator, was overpaid by the Medicaid program as alleged in the Final Agency Audit Report (FAAR) dated March 25, 2002.
Findings Of Fact Respondent is the agency of the State of Florida responsible for oversight of the integrity of the Medicaid program in Florida. At all times pertinent to this proceeding, Petitioner was a home and community services coordinator who provided services to Medicaid recipients in Florida pursuant to certification from Respondent. Petitioner billed the Medicaid program on a monthly basis and received payments from the Medicaid program based on those billings. As a community services coordinator, Petitioner served developmentally disabled clients who resided in the community, as opposed to residing in an institution. Petitioner coordinated the receipt of the services his clients received, including services from Developmental Services, which is a division of the Department of Children and Family Services. As a support coordination provider, Petitioner is required to determine the needs of each client, prepare a support coordination plan for that client, and, after the support coordination plan is approved by Respondent, coordinate the provision of the services required by the plan. Petitioner is required to document the services he provides for each client. Respondent routinely audits the records of Medicaid providers to ensure compliance with Medicaid requirements. The audit at issue in this proceeding covered the period January 1, 2000, to January 31, 2001. The unnumbered opening sentence of Section 409.913 provides as follows: The agency shall operate a program to oversee the activities of Florida Medicaid . . . providers and their representatives, . . . to recover overpayments and impose sanctions as appropriate. During the audit period, Petitioner was subject to all duly enacted statutes, laws, rules, and policy guidelines that generally govern Medicaid providers. During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner at Respondent's request to provide Respondent all Medicaid-related records and other information that supported all the Medicaid-related invoices or claims that Petitioner made during the audit period. Section 409.913(7) provides, in pertinent part, as follows: (7) When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty . . . to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * (e) Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law. Section 409.913(1)(d) defines the term "overpayment" as follows: (d) "Overpayment" includes 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. Following the audit, Respondent sent Petitioner the FAAR dated March 25, 2002, which asserted that Petitioner had received an overpayment in the amount of $45,574.92 and demanded repayment of the overpayment. Respondent stated the following basis for concluding that the claims were overpayments: You billed and were paid for Support Coordination Services when the documentation was not found to substantiate the services billed. The audit letter provided, in part, as follows: In determining payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and exclusions found in the Medicaid provider handbooks and (sic) Section 409.913, Florida Statutes (F.S.) and Florida Administrative Code 59G-8.200 (F.A.C.). In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules. . . . Medicaid cannot pay for services that do not meet these guidelines. Following his receipt of the audit letter, Petitioner provided Respondent with additional documentation. As a result of that information, Respondent reduced the amount of the claimed overpayment to the sum of $39,797.35. Petitioner was required to follow the billing and documentation requirements set forth in the Support Coordinator Guidebook (the Guidebook). The Guidebook was made available to Petitioner upon his enrollment as a home and community services support coordinator. Petitioner knew or should have known the billing and documentation requirements set forth in the Guidebook, and he knew or should have known that he was required to follow those requirements to be entitled to compensation from the Medicaid program. The Guidebook1 provided, in part, as follows: Payment to support coordination providers is made when all necessary support coordination activities have been provided to assist an individual in achieving or making progress toward achieving the outcomes identified on the support plan and when all documentation for these supports and services have been completed. Prior to requesting a monthly reimbursement for support coordinator services, the following must be met: The individual's current support plan and district-approved cost plan are filed in the individual's central record. . . . At least one face-to-face contact with the person for the month being billed has occurred. . . . At least once every three months, the monthly face-to-face contact occurs in the individual's or family's place of residence.. . . The support coordinator conducts at least one other activity during the month being billed. These contacts: (1) directly relate to implementing the outcomes identified on the individual's support plan, (2) directly relate to facilitating the development of natural and community supports, or (3) directly relate to facilitating the effective provision of supports and services needed by the individual. These contacts and activities may be either with the individual or other persons such as family members, service vendors, [or] community members. They may also be conducted face- to-face or by phone. Administrative activities such as typing, filing, mailing, billing, letter writing, or leaving messages shall not qualify as contacts or activities meeting the minimum billing criteria for a given month. Additionally, scheduling time to develop the support plan, setting up face-to-face contact, setting up meetings with other persons, and meeting with one's supervisor or co-workers do not qualify as meeting the minimum billing criteria. At least one of the contacts or activities shall be conducted on a different day within the month from the face-to-face contact with the individual. There was a dispute between the parties as to whether Petitioner satisfied the billing criteria that the support coordinator have at least one face-to face meeting the each client each month and, in addition, that the support coordinator perform at least one non-administrative activity on behalf of the client during the month. The greater weight of the credible evidence established that Petitioner did not meet the billing criteria for the claims at issue. While it is clear that Petitioner performed valuable services to his clients, he did not meet the clear billing criteria set forth in the Guidebook. Specifically, Petitioner did not have both a face-to-face meeting with the client and perform a non-administrative activity on behalf of the client during the month for any of the monthly billings at issue. Respondent correctly determined that Petitioner had received an overpayment within the meaning of Section 409.913(1)(d), and it correctly determined the amount of the overpayment to be $39,797.35. The Medicaid program does not provide for partial payments to a provider based on the work the provider actually performed if the provider's billings do not meet the billing criteria set forth in the applicable Guidebook. The Medicaid program provides for no payment to a provider if the provider's billings do not meet the billing criteria set forth in the applicable Guidebook.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner received an overpayment from the Medicaid program in the amount of $39,797.35 and requiring that Petitioner repay that overpayment. DONE AND ENTERED this 8th day of September, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 September, 2003.
The Issue Whether, in making a preliminary decision to award a contract for the subject services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Also at issue is whether Petitioner’s response to the subject Request for Proposal (RFP) was responsive and whether Petitioner has standing to bring this proceeding.
Findings Of Fact Pursuant to Section 409.902, Florida Statutes,1 the Respondent is the state agency charged with the responsibility and authority to administer the Medicaid program in Florida. On February 20, 2007, Respondent issued the RFP to select a vendor for the Florida Medicaid HIV/AIDS Disease Management Program. Cathy McEachron, Director of Respondent’s Procurement Office, served as the Issuing Officer for the RFP. The RFP requests that vendors submit proposals to provide disease management (DM) services to Florida’s Medicaid patients suffering from HIV/AIDS outside of Broward and Duval Counties (where Medicaid reform has been enacted) as well as services under the Project AIDS Care Services (PAC services) throughout the state. DM involves registered nurses who assess a patient’s condition, develop a plan of care, and implement that plan to ensure that the patient receives the care he or she needs. There are two goals or reasons for having a DM program. First, a DM program helps to hold down costs because the enrollees in the program (HIV/AIDS patients) who follow a plan of care are less likely to require more costly treatment, such as hospitalization. Second, DM tends to improve the outcome for the patients being managed. By memorandum from Roberta Kelly of Respondent’s Bureau of Health Systems Development, Respondent explained why an invitation to bid was not being used for the subject procurement: The Agency [Respondent] has a solid and satisfactory history with its contracts for HIV/AIDS disease management. Program evaluations and outcome measurements have shown the services to be beneficial to the health and outcomes of Medicaid enrollees while helping to control the costs of medical care. Given past performance the Agency knows that vendor qualifications, experience, and quality of services are more important than price for the procurement of said services, therefore a Request for Proposals is the appropriate method for procurement. There was minimal confusion as to the term of the RFP. In one place, the RFP indicated that it was for a one-year term while in other parts of the RFP the reference was to a two-year term. That erroneous statement was corrected. Proposed vendors were clearly notified by an addendum that the term was for two years. The addendum superseded the erroneous statement that the RFP was for a one-year term. Following the receipt of proposals, the two responding vendors were e-mailed about a possible change Respondent was contemplating to the scope of the services. The inquiry was whether the contemplated change, if put into place, would change the response of either vendor. Respondent made no change to the RFP. The subject e-mail did not flaw the procurement process. The RFP was divided into three parts: a Transmittal Letter, a Technical Proposal, and a Cost Proposal. The scores for all three parts were combined for the evaluation. Two responses to the RFP were received. Petitioner filed a response, as did Intervenor. MANDATORY CRITERIA Attachment E of the RFP, entitled Evaluation Criteria, provides in paragraph E.1 the following: Responses to this solicitation will be evaluated against the mandatory criteria found in Part I, Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. The checklist for the Mandatory Criteria is set forth in Part I of Attachment E (page 3 of 11). Four items are listed on the checklist with Item Three having four subparts. Only Items Three and Four are relevant to this proceeding. Item Three includes as a mandatory criteria that the transmittal letter include a copy of the vendor’s current accreditation. Item Four asks whether the response included a three-page Cost Proposal, as required in Section C.38. These mandatory requirements will be discussed in more detail below. PETITIONER’S HISTORY Petitioner is a newly formed corporation. Its parent corporation, AIDS Healthcare Foundation, Inc. (AHF), is the incumbent provider of the services sought by the RFP pursuant to a contract with Respondent. There has been no issue with regard to the quality of care provided by AHF under that contract. AHF caused Petitioner to become incorporated because the RFP contained a provision that a direct pharmaceutical provider could not be considered for the contract. AHF is a direct pharmaceutical provider. Petitioner is not a direct pharmaceutical provider. Petitioner’s response to the RFP proposed to transfer the program (personnel, facilities, accreditation, and other assets) that AHF is currently utilizing to provide the services required by the RFP from AHF to Petitioner. Further, Petitioner’s financing is dependent on AHF. PETITIONER’S COST PROPOSAL Attachment J to the RFP is incorporated herein by reference. Pursuant to Attachment C.38C (Attachment C, page 22 of 23) under the heading: “Cost Proposal (Must be submitted on page provided as Attachment J.[2]),” the following appears: The respondent [the vendor submitting the proposal] shall submit a cost proposal, as outlined in Attachment J., with each technical response. The cost proposal shall be labeled and tabbed separately and shall include a proposed unit price for each specified PAC served, a per member - per month case management fee for DM Program enrollees, and a detailed budget. The annual cost for each year will be added together to arrive at a two-year total cost, which shall not exceed $9.95 million. FAILURE TO SUBMIT ATTACHMENT J, COST PROPOSAL, INCLULDING THE DETAILED BUDGET FORM, SHALL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR’S RESPONSE. On page 1 of Attachment J the vendors were instructed to complete and return three tables. Table 1, pertaining to costs for PAC services, and Table 2, pertaining to costs for DM services, are found on page 2 of Attachment J. Table 3, pertaining to the detailed budget, is found on page 3 of Attachment J. Table 1 required the vendor to propose a unit price for each PAC service included in the RFP, to calculate the total cost for each category of service, and to show the grand total for all categories of PAC services. Table 1 included three categories of services. For each category of service, Table 1 provided an anticipated enrollment figure that was to be used in calculating the total cost for each category of service and in calculating the grand total for the PAC services. The total cost for a category of service was to be determined by multiplying the unit price by the anticipated enrollment figure. For the category “PAC Assessments”, Table 1 provided the anticipated enrollment figure of 6,334. For the category “Re-Assessments”, Table 1 provided the anticipated enrollment figure of 6,334. For the category “Exception Request Processing”, Table 1 provided the anticipated enrollment figure of 4,000. Table 1 required the vendor to calculate the grand total of the proposed costs for the three categories of PAC services. Table 1 also contained the caveat that the grand total could not exceed the sum of $950,000. Petitioner inserted a proposed per unit cost for each category. For the category “PAC Assessments”, the unit cost was $100.00. For the category “Re-Assessment”, the unit cost was $70.00. For the category “Exception Request Processing”, the unit cost was $25.00. However, in calculating the total cost for each category of service and the grand total for the PAC services, Petitioner did not use the anticipated enrollment figure set forth in Table 1, but, instead, used a lower anticipated enrollment figure that does not appear anywhere in the RFP. Instead of using Respondent’s anticipated enrollment figures, Petitioner made its own estimate of those figures. For the category “PAC Assessments”, Petitioner used the anticipated enrollment figure of 5,278 (as opposed to Respondent’s figure of 6,334) and the unit price of $100.00. By using its lower anticipated enrollment figure, Petitioner calculated the sum of $527,800.00 as the total cost for this category of service. Had it used Respondent’s anticipated enrollment figure, the calculation would have been $633,400.00. For the category “Re-Assessments” Petitioner used the anticipated enrollment figure of 5,000 (as opposed to Respondent’s figure of 6,334) and the unit price of $70.00. By using its lower anticipated enrollment figure, Petitioner calculated the sum of $350,000.00 as the total cost for this category of service. Had it used Respondent’s anticipated enrollment figure, the calculation would have been $443,380.00. For the category “Exception Request Processing” Petitioner used the anticipated enrollment figure of 2,664 (as opposed to Respondent’s figure of 4,000) and the unit price of $25.00. By using its lower anticipated enrollment figure, Petitioner calculated the sum of $66,600.00 as the total cost for this category of service. Had it used Respondent’s anticipated enrollment figure, the calculation would have been $100,000.00. By using the lower anticipated enrollment figures, Petitioner was able to propose a higher per unit cost for each category of service and stay below the not to exceed figure of $950,000. Petitioner’s grand total for the PAC services, using its anticipated enrollment figures, equaled $944,400.00. Had Petitioner used the Respondent’s anticipated enrollment figures for each category of service, the grand total would have been $1,176,780.00, which exceeds the not to exceed figure of $950,000.00. Petitioner completed Table 2, pertaining to DM services as instructed. Table 2 contained the caveat that the grand total for DM services was not to exceed $9,000,000.00. The grand total of the proposed services as reflected by Table 2 was $8,999,965.00, which is below the not to exceed figure. However, if Petitioner had used the Respondent’s anticipated enrollment figures in calculating the grand total costs for the PAC services in completing Table 1, its proposed total costs for the PAC services ($1,176,780.00) and its proposed costs for the DM services ($8,999,965.00) would have totaled $10,176,745.00, which exceeds the do not exceed figure of $9,950,00.00, for all categories of services. Section 287.012(26), Florida Statutes, defines the term “responsive vendor” as being “. . . a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” The undersigned rejects the argument that Petitioner was free to use its own anticipated enrollment figures since it would not be able to collect more than the not to exceed figure of $950,000.00 for the PAC services regardless of the unit price and regardless of the number of enrollees. Petitioner’s use of the lower anticipated enrollment numbers enabled it to propose a higher unit cost than it could have proposed had it used Respondent’s anticipated enrollment figures, thereby providing Petitioner with an unfair competitive advantage. This higher unit cost would enable Petitioner to collect its funds more quickly during the term of the contract than it could have with a lower unit cost rate. The higher unit cost rate would also have resulted in Petitioner collecting more than it could have if the actual number of enrollees is less than the Respondent’s anticipated enrollment figure.3 Petitioner’s failure to use the Respondent’s anticipated enrollment figure in completing Table 1 of Attachment J is a major deviation from the solicitation document that renders Petitioner’s cost proposal non-responsive. Petitioner is a non-responsive bidder because the cost proposal is a mandatory item. After the deadline for the submission of responses, Ms. McEachron reviewed Petitioner’s response and Intervenor’s response to determine whether the responses met all mandatory criteria. Ms. McEachron determined that both responses met all mandatory criteria. Ms. McEachron testified at the formal hearing that she made a mistake in reviewing Petitioner’s cost proposal in that she did not notice that Petitioner had not used Respondent’s anticipated enrollment figures in completing Table 1 of Attachment J. Ms. McEachron testified, credibly, had she not made that mistake, she would have determined Petitioner’s response to be non-responsive and that Petitioner’s response would not have been submitted for further evaluation. PETITIONER’S LACK OF ACCREDITATION Attachment D, page 2 of the RFP requires that a vendor must be experienced in the delivery of HIV/AIDS services, accredited by a recognized entity such as URAC, JCAHO, or NCQA, and be a financially sound DM organization. As stated above, the Mandatory Criteria set forth in Attachment E, page 3 of 11, requires that a vendor’s transmittal letter include a copy of the vendor’s current accreditation. Petitioner did not include a copy of its accreditation in its transmittal letter. Instead, Petitioner inserted the following: AIDS Healthcare Foundation (AHF), the current holder of the Disease Management contract, operates that program with NCQA accreditation. As laid out in detail in the application, all of AHF’s Disease Management operations in Florida are being transferred to AHFDM [Petitioner], a wholly separate corporation from AHF. Under the rules set forth by the NCQA, the accreditation can be transferred within 30 days by applying for transfer to the NCQA. AHFDM [Petitioner] is in the process of making this transfer. The transfer will be accomplished by the anticipated July 1, 2007 contract start date. Respondent and Intervenor correctly argue that Petitioner’s failure to have accreditation prior to submitting its proposal is a deviation from the RFP specifications.4 While Ms. Stidman’s testified that AHF had agreed to this procedure, there was no documentary evidence to support her testimony. Petitioner’s failure to comply with this mandatory item rendered its response non-responsive. INTERVENOR’S 2004/2005 FINANCIAL STATEMENT Petitioner challenged the sufficiency of Intervenor’s response to the requirement of Attachment C, paragraph 38.B.2.c, (Attachment C, page 15 of 23) that each vendor responding to the RFP file “[a] copy of the vendor’s most recent financial statement or audit” (the financial requirement). In response to the financial requirement, Intervenor submitted an audited financial statement for the Intervenor and its subsidiaries for the calendar years 2004 and 2005. Because Intervenor’s subsidiaries were included, the audited financial statements were considered to be consolidated financial statements. The audited financial statement provided by Intervenor for those two years was the most recent audited financial statement available to Intervenor. Intervenor had more recent financial statements, but those financial statements were not audited. Ms. McEachron, as the agency procurement director, interpreted the financial requirement to require a vendor to provide its latest unaudited financial statement or its latest audited financial statement without regard to whether one statement was more recent than the other. Ms. McEachron testified that Intervenor complied with the financial requirement because it submitted its most recent audit despite the fact that the audit was for the years 2004/2005. Ms. McEachron’s interpretation is consistent with the plain reading of the provision. Ms. Newman evaluated Intervenor’s financial condition based on the information that had been provided to her by Intervenor. Ms. Newman testified that she was not concerned that the audited financial statement was for years 2004/2005. She further testified that audited financial statements are frequently required for the type evaluation at issue in this proceeding. Ms. Newman awarded Intervenor a rating of 2, which signified that its financial condition, based on the information available to her, was below average. Ms. Newman has, in other procurements, used a score of 2 or below to reflect her opinion that the bidder is “not financially stable.” There was no evidence as to the evaluation criteria for those other procurements. Ms. Newman testified that for the subject procurement, she did not evaluate Intervenor as being “not apparently financially stable” she evaluated its financial condition as below average.5 Mr. Law, who has considerable experience dealing with agency procurements, reviewed Intervenor’s 2004/2005 audited financial statement on behalf of Petitioner. Mr. Law opined that the audited financial statement demonstrated that Intervenor was not a responsible vendor, and explained his opinion. Mr. Law believed that Intervenor had insufficient working capital to perform the contract. He was concerned that Intervenor had a net profit of $29,732.00 in 2004 and a net loss of $273,213.00 for 2005. At the end of 2004, Intervenor had working capital of $512,000.00. At the end of 2005, Intervenor’s working capital had been reduced to approximately $265,000.00. Mr. Law opined that Intervenor would need $660,000.00 in upfront working capital to fund the contract in the first year.6 Mr. Mercer, who also has extensive experience, reviewed Intervenor’s 2004/2005 audited financial statement on behalf of Intervenor. Mr. Mercer opined that the financial statement Intervenor provided as part of its response to the RFP demonstrated that Intervenor was a responsible bidder, and explained the rationale for his opinion. Mr. Mercer testified to the following: Intervenor had a Current Ratio of 3.23 at the end of 2005, which showed a strong working capital relationship;[7] Intervenor needed working capital of $250,000.00 to fund the contract. It had working capital in the amount of $265,000.00 at the end of 2005;[8] Intervenor had a positive asset to debt ratio of .32; Intervenor was creditworthy based on its ratio of assets to liabilities, its amount of working capital, its positive ratio of assets to liabilities, and its history; Intervenor’s Defense Interval ratio of 25 days was average;[9] Intervenor’s Debt to Equity ratio of .46 was positive; Intervenor’s Collection Period of 19 days was positive;[10] Intervenor had the necessary capital to purchase needed equipment; Intervenor’s financial condition would benefit by the subject contract; and The appearance of Intervenor’s financial strength at the end of 2005 was diminished by the payment of discretionary bonuses to avoid taxation at the corporate and individual shareholder level. Both Mr. Law and Mr. Mercer agreed that Intervenor would need an infusion of start-up capital for the contract. Both agreed that most lenders would require more recent financial information than the 2004/2005 audited financial statement prior to lending money to Intervenor. Mr. Mercer opined that Intervenor would require approximately $150,000.00 in capital as opposed to Mr. Law’s opinion that $660,000.00 would be needed. Mr. Mercer testified that Intervenor was creditworthy based on its 2004/2005 financial statement. Mr. Law testified that further information would be required to make that determination. The undersigned has carefully considered the testimony of Ms. Newman, Mr. Law, and Mr. Mercer. The conflicting evidence is resolved by finding that Ms. Newman correctly evaluated Intervenor’s financial condition based on her review of the 2004/2005 audited financial statements. The 2004/2005 audited financial statement reflected that Intervenor’s financial condition is “below average.” The financial statement did not establish that Intervenor was a non-responsive bidder due to a lack of financial stability to complete the contract. IS INTERVENOR A RESPONSIBLE BIDDER? Section 287.012(24), Florida Statutes, defines the term “responsible vendor” as follows: (24) “Responsible vendor” means a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance. Section 287.057(2)(b), Florida Statutes, requires that contracts be awarded to responsible vendors as follows: (b) The contract shall be awarded to the responsible and responsive vendor, whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. The contract file shall contain documentation supporting the basis on which the award is made. Six subsidiaries were shown on the consolidated financial statement submitted by Intervenor. Each subsidiary was a limited liability company that Intervenor had established. Each subsidiary was established to provide DM services in a specific state pursuant to a subcontract between the subsidiary and a company named McKesson Health Solutions, LLC (McKesson). McKesson, in turn, had a contract with the specific state to provide DM in that state. During 2005, Intervenor controlled subsidiaries that had subcontracts with McKesson to provide DM services in each of the following states: Mississippi, Montana, New Hampshire, Texas, and Washington. The 2004/2005 audited financial statement demonstrated that in 2005, approximately 87 percent of the total revenues on a consolidated basis came from the five subsidiaries for the states mentioned above, and not from Intervenor. Intervenor’s reliance on these subsidiaries for income was heavy. For the year ending December 31, 2005, the consolidated financial statement reflected a negative net income of $273,000.00. For the year ending December 31, 2004, the consolidated financial statement reflected a small profit. The consolidated financial statement reflected a downturn between those two years. At the time Intervenor filed its response to the RFP, its contracts with McKesson had been terminated and each of its subsidiaries had been dissolved.11 Ms. Newman testified that it would be highly unlikely that the audited consolidated financial statement for the years 2004/2005 fairly represented the financial condition of Intervenor in 2007. Petitioner proved that Intervenor’s financial condition experienced substantial and material changes between the ending date of the audited financial statement and the date of Intervenor’s response to the RFP. Because of those changes, Respondent has relied on stale financial information. Respondent does not, without updated financial information, have sufficient information to determine whether Intervenor is a responsible vendor with the requisite financial stability to perform the subject contract.12 While Respondent acted within its discretion in allowing a vendor to use stale financial information as part of its evaluation process, it does not have such discretion in determining whether a vendor is a responsible vendor within the meaning of Section 287.012(24), Florida Statutes, as required by Section 287.057(2)(b), Florida Statutes. The statutory requirement that an agency deal only with responsible vendors cannot be waived by a vendor or ignored by an agency. Petitioner established that Respondent failed to ensure that Intervenor is a responsible vendor.13 The evidence established that but for the missing up- to-date financial information, Intervenor is a responsive bidder.14 THE EVALUATION For a procurement of the nature and dollar amount of this procurement, Respondent’s agency head is required by the provisions of Section 287.057(17)(a), Florida Statutes, to appoint: (a) At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. By memo dated March 16, 2007, Thomas W. Arnold, Respondent’s Deputy Secretary for Medicaid, appointed the following to serve on the evaluation team for the subject procurement as follows: Brenda Jones-Garrett, Medical Health Care Program Analyst, Bureau of Medicaid Services, Division of Medicaid. Responsible for the Project AIDS Care Waiver service oversight. Ms. Garrett-Jones previously worked in AHCA’s division of Quality Management and had been working with HIV/AIDS prior to coming to the Agency. Talisa-Hardy, Clinical Program Manager, Bureau of Medicaid Pharmacy Services. Dr. Hardy has a doctorate in pharmacy and has been practicing for seven and a half years in several areas including HIV/AIDS. Vivian Booth, Nurse Consultant, Bureau of Medicaid Health Systems Development. While employed with AHCA, Ms. Booth provides RN consulting service and is the contract manager for the Minority Physician Network Program. She has served on the HIV/AIDS Title II Collaborative as the Agency representative for approximately one year, and participated in the on-site monitoring of the HIV/AIDS disease management program, Positive Health Care. Gayle McLaughlin, Nurse Consultant, Florida Department of Health, HIV/AIDS Bureau. Dr. McLaughlin has worked for seven years as a nurse consultant with the Bureau of HIV/AIDS. She functions as a primary clinical resource for public and private sector medical providers involved in HIV/AIDS care. She is also currently a member of HRSA Title II Collaborative which is a national initiative focused on improvement of the quality of HIV/AIDS care. Kay Newman, Senior Management Analyst, Office of the Deputy Secretary for Medicaid. Ms. Newman is a certified public accountant, who will evaluate the solvency of the respondents via review of their financial statements. Ms. Newman’s evaluation was limited to the financial evaluation. There was no contention that Ms. Newman lacked the qualifications and training to conduct her evaluation. As discussed above, Ms. McEachron reviewed the proposals to determine whether the vendor met all mandatory items and Ms. Newman evaluated the vendors’ financial statements. Paragraph E.2 provided instructions as to how each response was to be evaluated. The following point system was to be utilized: Points 0 The component was not addressed. The component contained significant deficiencies. The component is below average. The component is average. The component is above average. The component is excellent. Part II of Attachment E (page 4 of 11) set forth the areas of the proposal to be evaluated, gave the maximum raw score possible for each area, and provided a weight factor for each score. Each evaluator could award a maximum of 325 points for a proposal. The four evaluations would then be added for the final tally. The “Detailed Evaluation Criteria Components” are set forth in Attachment E, pages 5–11. Attachment D of the RFP discusses in detail the Scope of Services to be provided and the requirement that staffing levels be sufficient to complete all of the responsibilities outlined in the RFP. Each vendor is required to discuss its proposed staffing for the project and its service delivery approach. The RFP does not contain minimum staffing requirements. Paragraph 3 of the Detailed Evaluation Criteria Components (Attachment E, pages 5 and 6), under the heading Project Staffing, instructs the evaluators as to how they are to evaluate the portion of the vendor’s response that addresses its proposed staffing. Paragraph 4 of the Detailed Evaluation Criteria Components (Attachment E, pages 6 – 8) instructs the evaluators as to how they are to evaluate the portion of the vendor’s response that addresses its service delivery approach. There was no independent training of the evaluators. The evaluators were not provided materials outside of the RFP and the responses thereto. Each evaluator independently evaluated the responses. As instructed, no evaluator discussed her evaluations with the other evaluators. Petitioner presented the testimony of Ms. Garrett- Jones, Dr. Hardy, and Ms. Booth. Dr. McLaughlin was not called as a witness. The testimony of Ms. Jones-Garrett established her educational background and her experience. Ms. Jones-Garrett is the analyst in charge of the PAC services waiver for Respondent. One of the major components of the RFP was for the delivery of waiver for PAC services. Ms. Jones-Garrett has five and a-half years experience working in the public health department and an immunology/AIDS clinic in Orlando. During her time working there, she supervised an LPN, who was responsible for adherence to AIDS medication. She has knowledge of HIV care and regimens. She has a good understanding of the PAC services waiver and PAC waiver assessments. Based on her background and experience, the undersigned finds that she was qualified to sit as an evaluator.15 There was no evidence that she failed to follow the instructions given to her in performing her evaluation. Petitioner failed to establish that the evaluation process was flawed by the manner in which Ms. Jones-Garret performed her evaluation of the two responses. The testimony of Dr. Hardy established her educational background and her experience. Dr. Hardy has a Doctor of Pharmacy degree, is a licensed pharmacist, and has served as clinical pharmacy program manager for Respondent, where she oversees the delivery of medical and pharmaceutical services to Florida recipients suffering from co-morbid diseases. Dr. Hardy was previously employed by Florida State Hospital as a clinical pharmacist. While there, she dealt with patients, many of whom had HIV or AIDS. Their drugs, because of the clinical effects and drug interactions with psychotropic medications, were closely monitored. As a pharmacist, Dr. Hardy performed drug counseling for HIV/AIDS patients, drug utilization reviews, and other critical components involved in assisting in the management of an HIV/AIDS patient’s disease. Based on her background and experience, the undersigned finds that she was qualified to sit as an evaluator. There was no evidence that she failed to follow the instructions given to her in performing her evaluation. Petitioner failed to establish that the evaluation process was flawed by the manner in which Dr. Hardy performed her evaluation of the two responses. The testimony of Ms. Booth established her educational background and her experience. Ms. Booth has served as a contract manager for disease management projects, has been involved in assessing HIV/AIDS patients for medical care or disease management purposes. She has developed care plans for disease management programs requiring the coordination of physicians, therapists, nurses, and aides. She has significant experience supervising nurses and determining their staffing schedules. Ms. Booth is also a certified contract manager with training in procurement of disease management services. Based on her background and experience, the undersigned finds that she was qualified to sit as an evaluator. There was no evidence that she failed to follow the instructions given to her in performing her evaluation. Petitioner failed to establish that the evaluation process was flawed by the manner in which Ms. Booth performed her evaluation of the two responses. INTERVENOR’S STAFFING PROPOSAL Paragraph C.38.B of Attachment C of the RFP sets forth Technical Response requirements, beginning on page 14. Sub- paragraph 3 thereof (on page 15) pertains to Project Staffing and provides, in part, as follows: The respondent [vendor] shall demonstrate its capability by describing the qualifications and experience of its proposed staff, as stated in Attachment D, Section D.8. The description shall include, at a minimum: * * * d. The number, qualifications and credentials of the proposed RNs/LPNs, and how each area of the state will be served by the HIV/AIDS disease management program staff, number of staff for each area, the percentage of time to be devoted to this Program, information on the lead case manager (RN/LPN) in each geographic area, ability to be available 24 hours per day, seven (7) days per week, and where they will be located in Florida. Intervenor’s response to the RFP contained a detailed description in compliance with this requirement. The Detailed Evaluation Criteria Components, found beginning at page 5 of Attachment E, established that each evaluator could award a maximum of 45 points for the Project Staffing category. Since there were nine subparts to the category, each category, including the category pertaining to the nursing staff, could be awarded a maximum of five points. Each evaluator was to score Intervenor’s response to this category on the 0 to 5 scale set forth above. Ms. Stidman testified at length as to the deficiencies in Intervenor’s staffing plan for nurses. This testimony did not establish that Intervenor was a non-responsive bidder or that any evaluator failed to properly score this category. Intervenor was awarded a total of 14 points for this category from the four evaluators. THE FINAL TALLY Following the evaluation, Intervenor was awarded a total of 985 points. Petitioner was awarded 943 points. Petitioner failed to establish that the evaluation process was materially flawed. Petitioner failed to establish that it should have been awarded more points than Intervenor.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is further recommended that Petitioner’s proposal be rejected because it is non-responsive. It is further recommended that Intervenor’s proposal be rejected because Respondent has insufficient information to determine whether it is a responsible vendor. DONE AND ENTERED this 6th day of September, 2007, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 6th day of September, 2007.
The Issue Did the Department of Children and Family Services (Department) improperly deny the in-home subsidy of $400.00 per month to Petitioner?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family Care Program, and the provisions of in-home subsidies. Petitioner is a 30-year-old severely developmentally disabled woman who suffers from cerebral palsy and is totally blind. Petitioner is confined to a wheelchair, cannot care for herself, and is totally dependent on others for her care 24 hours a day. Petitioner lives with her mother and legal guardian, Jo Anne Weaver, and her stepfather, in the Weaver's home, which was purchased by the Weavers in March 2001, with a mortgage, after renting the home for three years. The Weavers have made modifications to the home to accommodate Petitioner's needs, including a ceiling lift that takes Petitioner from her bed, through the hall, and into her bathroom. Mr. Weaver is school teacher who works two nights a week in addition to daytime employment. Jo Anne Weaver sells advertising for the Jewish Press and earns $170.00 per week, plus $50.00 per week for expenses. In addition to the in-home subsidy, Petitioner receives assistance through the Department under the Medicaid Waiver Program, which allocates funds to provide Petitioner with in- home caregivers and other in-home services, such as companion services, personal care assistance, respite care, and consumable medical supplies. The funds under the Medicaid Waiver Program are paid directly to the caregivers and service providers and not to Petitioner or her guardian. The Medicaid Waiver Program, through a cost plan established and approved each year for Petitioner, allocates funds to provide a maximum of ten hours per day of caregiver services to Petitioner. Petitioner's family, primarily her mother and stepfather, provide uncompensated care to Petitioner the remaining 14 hours of each day. Petitioner's mother gets up several times each night to diaper Petitioner and to reposition her in the bed. Due to a number of factors, Medicaid Waiver Program services that have been approved under a support plan may not ultimately be received by the disabled person. Petitioner has never used all the funding allocated under her support plan. Although the Medicaid Waiver Program authorizes the provisions of funds for caregivers for 10 hours each day, Petitioner's mother has been unable to arrange consistently for caregivers to come to the home for the full 70 hours each week because it is very difficult to find, secure, and keep caregivers who will provide services under the terms of the Medicaid Waiver Program. In addition to the services authorized under the Medicaid Waiver Program, Petitioner has been, since 1995, receiving a monthly in-home subsidy of $400.00 per month in accordance with Section 393.0695, Florida Statutes. The in-home subsidy is paid from general revenue funds and is not part of Medicaid program, and is the only payment that Petitioner or the Weavers receive directly from the Department. However, Petitioner receives $74.00 per month Supplemental Security Income and $478.00 per month court-ordered support payment from her father. Additionally, Petitioner's father pays for her Blue Cross/Blue Shield health insurance coverage. The Weavers pay for Petitioner's out-of-pocket medical and dental expenses. Petitioner's Proposed Developmental Services Cost Plan (Support Plan) with a development date of December 15, 2000, shows a proposed cost of $87,518.96. This amount included a $400.00 per month ($4,800.00 per year) in-home subsidy for basic living necessities as set forth in Subsection 393.0695(2), Florida Statutes. At the time the proposed support plan was submitted, the average cost for institutional placement was $71,424.44. On August 27, 1999, the Department issued the Developmental Services Home and Community-Based Services, WAIVER CLARIFICATION P.D.#99-05 REV02, Waiver Cost Review Policy with an effective date of October 1, 1999 (Policy Directive), which stated in pertinent part as follows: Effective October 1, 1999, individuals with an annual average cost in excess of Intermediate Care Facilities for persons with Developmental Disabilities (ICF/DD) shall only be enrolled into the waiver if the Secretary of the Department approves an exception. . . If the total costs to support an individual in the community exceed the ICF/DD cost, the plan must be submitted for review and approval or denial before the individual is added to the waiver. . . . On December 29, 2000, in accordance with the above Policy Directive, Petitioner's Proposed Support Plan was submitted to the Department's Tallahassee office for review. On January 19, 2001, Susan Dickerson, Chief concurred in the recommendation to approve the Proposed Support Plan with the following exceptions: Other Adaptive Equipment and stroller repairs and adaptations should be determined as medically necessary before approval. Physical therapy approved only for the amount in excess of coverage by Medicaid state plan. Family subsidy for $400.00 of general revenue funds monthly is not approved. WSC should explore other less costly options for providing services including attending a day program. (Emphasis furnished) On January 23, 2001, a reconsideration of Susan Dickerson's decision was requested, and on February 15, 2001, Kathleen A. Kearney, Secretary, concurred in the earlier recommendation, which included the same exceptions. By a Notice of Denial of Requested Service Funded Through General Revenue dated March 8, 2001, the Department advised Petitioner that her request for in-house subsidy had been denied because "Medical necessity for this service had not been demonstrated as defined in Chapter 59G-1.010(166), Florida Administrative Code." (Emphasis furnished). There was no other reason offered, including the unavailability of funds for this service under existing appropriations, given by the Department for denying Petitioner's request for the in-house subsidy. The Department has not alleged that funds were unavailable to provide the in-house subsidy to Petitioner. The final cost approved for the support plan was $82,718.96. The Petitioner has demonstrated a need for the in-home subsidy in the amount requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order approving Petitioner's request for in-home subsidy in the amount of $400.00 per month. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 4th day of February, 2002. COPIES FURNISHED: Susan Haubenstock-Greenburg, Esquire Post Office Box 1588 Tampa, Florida 33601-1588 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Peggy Sanford, 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
