The Issue Whether the Respondent's certification under the Home and Community Based Services Medicaid Waiver Program should be suspended.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Family Services is the state agency responsible for administering what is known as the Home and Community Based Services Medicaid Waiver Program ("Waiver Program") for the developmentally disabled. Chapter 393, Florida Statutes. The Department is specifically charged with the responsibility for establishing by rule procedures for carrying out the mandates of Sections 393.001-.501. Section 393.501(1), Florida Statutes. William L. "Timothy" Robinson is certified by the Department as a behavior analyst, which means he is qualified to "design[] and implement[] . . . behavioral programs for persons who are developmentally disabled." Section 393.165. Only persons who are certified behavior analysts may be certified to provide services to clients in the Waiver Program. As part of its procedure for certifying behavior analysts to provide services under the Waiver Program, the Department requires that applicants execute a contract consisting of several parts. Part III of the contract is entitled Assurances, and, by his or her signature, the applicant agrees to comply with state and federal laws, rules, and policies. On July 19, 1995, Mr. Robinson applied in his individual capacity for certification to provide behavior analyst services to clients in the Waiver Program administered in the Department's District 11. He signed Part III of the application, and, at some point after July 19, 1995, Mr. Robinson was certified to provide services to clients in the Waiver Program. Subsequently, Mr. Robinson incorporated his business, and, on November 18, 1996, as Executive Director of Behavior Management Training Systems, Inc., he again executed Part III of the application, which contains the same provisions as the document Mr. Robinson signed as an individual on July 19, 1995. On November 17, 1996, as part of the application process, Mr. Robinson executed on behalf of Behavior Management Training Systems, Inc., a document entitled "Agency for Health Care Administration, Electronic Claims Submission Agreement." Paragraph 8 of this document states that "[p]rovider shall abide by all Federal and State statutes, rules, regulations and manuals governing the Florida Medicaid Program and those conditions as set out in the Medical Assistance Provider Agreement entered into previously." Mr. Robinson was retained by several support coordinators5 to provide behavior analyst services to clients in the Waiver Program. He submitted his monthly invoices and reports to the support coordinators, who forwarded them to Unisys, the Department's billing agent, for payment. During the fall of 1996, Kirk Ryon, the Medicaid Waiver Coordinator for District 11, received complaints from at least one support coordinator alleging that Mr. Robinson's documentation was not adequate to support his invoices for services.6 On December 17, 1996, Mr. Robinson met with Mr. Ryon and several other individuals employed by the Department to discuss the complaints that had been made regarding Mr. Robinson's billing practices and the behavior analyst services he provided to clients paid both through the Waiver Program and through general revenue.7 During this meeting, Mr. Robinson was asked to provide backup documentation to support his invoices for services. On December 17, after the meeting, Mr. Ryon wrote a letter to Mr. Robinson following up on the discussion at the meeting and requesting backup documentation for services provided to ten clients, four of whom received services under the Waiver Program. The remaining six clients received services from Mr. Robinson that were paid from general revenue. Although Mr. Robinson may not have received the December 17 letter,8 he wrote a letter that he dated January 14, 1996, 9 to Dr. Michael Wesolowski, an employee of the Department who attended the December 17 meeting. Mr. Robinson sent with the letter to Dr. Wesolowski monthly reports for June, July, August, and September 1996 for Felicia's House, one of the facilities at which he provided behavioral analyst services. Mr. Robinson acknowledged in the January 14 letter that he sent these documents in response to the Department's request for backup documentation for his billings and that the Department's request was made in response to complaints received by the Department and discussed at the December 17 meeting. Dr. Wesolowski did not provide Mr. Ryon with a copy of this letter or the attached documentation.10 Mr. Robinson provided no other documentation to the Department prior to February 5, 1997, when Mr. Ryon notified Mr. Robinson that his certification to provide services under District 11's Waiver Program was suspended. After he requested a formal hearing to contest the allegations in the February 5 letter, Mr. Robinson provided the Department during the course of discovery all of the documents in his possession relating to the services provided to the four clients in the Waiver Program. These documents, together with the documents provided by Mr. Robinson to Dr. Wesolowski in January 1997, were provided to Mr. Ryon by the Department's counsel two days before the formal hearing in this case commenced. Mr. Ryon reconciled the documents with the invoices Mr. Robinson had submitted and found that the documentation provided did not support many of the units11 of service for which Mr. Robinson had been paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certification of William L. "Timothy" Robinson to provide services under the Home and Community Based Services Medicaid Waiver Program be suspended until February 5, 1998, one (1) year from the effective date of his suspension on February 5, 1997. DONE AND ENTERED this 22nd day of January, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1998.
The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments.
Findings Of Fact Petitioner Petitioner is a Florida-licensed osteopathic physician specializing in internal medicine. He has board certifications in internal medicine and nuclear medicine. In addition, he is certified in the sub-specialty of cardiology. Petitioner graduated from the Kirksville College of Osteopathic Medicine in Kirksville, Missouri in 1962. He has been practicing as an osteopathic internist in Florida since 1966, the year he came to the state after completing his residency at Brentwood Hospital in Cleveland, Ohio. Petitioner's Practice Petitioner's practice is now, and has been at all times material to instant case, located in Miami-Dade County, Florida. Petitioner currently practices at 9765 Southwest 184th Street in Miami Florida. Among Petitioner's current patients are Ira Hershman, D.O., a retired osteopathic physician who, as noted above, testified as a medical expert on Petitioner's behalf in this case, and Dr. Hershman's wife. Dr. Hershman's "career as an active doctor ended in 1997." Dr. Hershman was, and still is, board-certified in family practice medicine. Unlike Petitioner, at no time has he been board-certified in internal medicine. When he was in active practice and needed to consult with an internist, he "utilized [Petitioner's] services."12 From the "mid '60s through the '90s," Dr. Hershman and Petitioner were "on the staff of hospitals" together. They are, and have been over the years, "friends." Furthermore, their "families know each other" and socialize. During the period from March 1, 1996, through March 17, 1998 (Audit Period), Petitioner rendered "primary care" services at 17615 Southwest 97th Avenue, Miami, Florida, in a 30,000 square foot facility known as the Suburban Medical Center (Facility), which he owned and operated. A significant number of Medicaid patients were served at the Facility. Other physicians, hired by Petitioner, saw and otherwise provided services to Petitioner's patients at the Facility. Petitioner considered these physicians, who included Drs. Katzeff and Lubin, to be "independent contractors." On the premises of the Facility, Petitioner had "sophisticated equipment," not typically found in a "primary care" setting, available to perform various diagnostic tests,13 as well as a room equipped with items for urgent care that "very few" primary care physicians have. Petitioner used Dr. Key as a "consultant in radiology" to provide him with the "official reading" of x-rays, CAT scans, mammographies, and other imaging tests done at the Facility. The Provider Agreements During the Audit Period, Petitioner was authorized to provide physician services to eligible Medicaid patients. Petitioner provided such services pursuant to two provider agreements. The first agreement was a Non-Institutional Professional and Technical Medicaid Provider Agreement (First Provider Agreement) that Petitioner had entered into with the Department of Health and Rehabilitative Services, AHCA's predecessor, in 1983.14 The First Provider Agreement contained the following provisions, among others: * * * The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State Agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request. The provider agrees that claims submitted must be for services rendered to eligible recipients of the Florida Medicaid Program and that payment by the program for services rendered will be based on the payment methodology in the applicable Administrative Rule. The Provider also agrees to submit requests for payment in accordance with program policies. * * * Payment by the State agency shall constitute full payment for services rendered to recipients under the Medicaid program except in specific programs when co- insurance is required from the recipient. The provider and the Department agree to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. * * * The second agreement was a Medicaid Provider Agreement (Second Provider Agreement) that Petitioner had entered into with AHCA in October of 1996. The Second Provider Agreement contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Services. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they my be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. This provider agreement shall become effective the date the provider's Florida Medicaid Enrollment Application is received by the state or its fiscal agent. It shall remain in effect until July 1, 1999, unless otherwise terminated. This agreement shall be renewable only by mutual consent. The provider understands and agrees that no Agency signature is required to make this Agreement valid and enforceable. Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * Accept Medicaid payment as payment in full . . . . . . . . The provider shall be liable for all overpayments for any reason and pay to the Agency any fine or overpayment imposed by the Agency or a court of competent jurisdiction. Provider agrees to pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * Agency Responsibilities. The Agency: (a) Unless claims have been pended for medical review or investigation of suspected fraud or abuse, will make payment within 60 days at the established rate for medically necessary services or goods furnished to an eligible recipient by the provider upon receipt of a properly completed claim. . . . Termination and Equitable Relief. This agreement may be terminated, with or without cause, upon thirty (30) days written notice by either party. . . . * * * (19) Assignability. The provider number is the property of the Agency and the provider may not assign its rights or obligation under this number or this Agreement without the express written consent of the Agency. * * * THE PROVIDER AGREES THAT THIS AGREEMENT SHALL MERGE AND BECOME A PART OF THE PROVIDER APPLICATION . . . . The Provider Reenrollment Request form that Petitioner submitted (with which the Second Provider Agreement "merge[d]") reflected that the "provider['s] name" was "Minkes, Jules G." At no time did Petitioner enroll in the Medicaid program as part of a group practice (consisting of two or more physicians).15 He was enrolled only as an individual provider, and he used his individual provider number (0466301-00) to bill the Medicaid program. All of the Medicaid claims that are the subject of the instant controversy were billed by Petitioner under his individual provider number. Manual and Handbook Provisions Among the "manuals" and "handbooks" Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements were the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR Handbook) and the Physician Coverage and Limitations Handbook (PCL Handbook). Medical Necessity The PCL Handbook provided that the Medicaid program would reimburse for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows: In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient's needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available statewide; and the service must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services. Note See Appendix D, Glossary, in the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 224, for the definition of medically necessary The term "medically necessary" was defined in Appendix D of the MPR Handbook as follows: Medically Necessary or Medical Necessity Means that the medical or allied care, goods, or services furnished or ordered must: Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; Be individualized specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; 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; and Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. "Medically necessary" or "medical necessity" for inpatient hospital services requires that those services furnished in a hospital on an inpatient basis could not, consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity or a covered service. Documentation Requirements The MPR Handbook required that: "medical records . . . state the necessity for and the extent of services provided"16; and the provider "retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient" for "at least five years from the date of service." The handbook further provided that "payments for services that lack[ed] required documentation" would be recouped. Physician Supervision The PCL Handbook provided: Delivery of all services must be done by or under the personal supervision of the physician. Personal supervision means the physician: is in the building when the services are rendered, and signs and dates the medical record within 24 hours of providing the service. Enrollment Requirements The PCL Handbook and the MPR Handbook both mandated that two or more physicians practicing together as a group enroll in the Medicaid program as a "provider group" and that each member of the group enroll in the program as an individual provider. Under the provisions of the MPR Handbook, an "individual provider" was required to "report when the provider bec[ame] a member of a provider group or [was] no longer a member of a provider group." Coding Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients." As explained on the first page of this chapter of the handbook: The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book. The CPT include[d] HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . . The Physicians' Current Procedural Terminology At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or the "CPT") referred to in Chapter 3 of the PCL Handbook contained an "[i]ntroduction," which read, in pertinent part, as follows: Physicians' Current Procedural Terminology (CPT) is a systematic listing and coding of procedures and services performed by physicians. Each procedure is identified by a five digit code. . . . Inclusion of a descriptor and its associated specific five-digit identifying code number in CPT is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations. . . . * * * Section Numbers and Their Sequences Evaluation and Management 99201 to 99499 * * * Surgery 10040 to 69979 Radiology (Including Nuclear Medicine and Diagnostic Ultrasound) 70010 to 79999 * * * At all times material to the instant case, the CPT referred to in Chapter 3 of the PCL Handbook had "[e]valuation and [m]anagement (E/M) [s]ervice [g]uidelines" (E/M Guidelines). It was noted on the first page of the E/M Guidelines that: The E/M section is divided into broad categories such as office visits, hospital visits, and consultations. Most of the categories are further divided into two or more subcategories of E/M services. For example, there are two subcategories of office visits (new patient and established patient) and there are two subcategories of hospital visits (initial and subsequent). The subcategories of the E/M services are further classified into levels of E/M services that are identified by specific codes. . . . "New and [e]stablished patient[s]" were described in the E/M Guidelines as follows: A new patient is one who has not received any professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. An established patient is one who has received professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. The concept of "[l]evels of E/M [s]ervices" was described, in pertinent part, as follows in the E/M Guidelines: Within each category or subcategory of E/M service, there are three to five levels of E/M services available for reporting purposes. . . . The levels of E/M services include examinations, evaluations, treatments, conferences with or concerning patients, preventative pediatric and adult health supervision, and similar medical services, such as the determination of the need and/or location for appropriate care. Medical screening includes the history, examination, and medical decision-making required to determine the need and/or location for appropriate care and treatment of the patient . . . . The levels of E/M services encompass the wide variations in skill, effort, time, responsibility and medical knowledge required for the prevention or diagnosis and treatment of illness or injury and the promotion of optimal health. Each level of E/M services may be used by all physicians. The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three or these components (history, examination and medical decision making) are considered the key components in selecting a level of E/M services. . . . The next three components (counseling, coordination of care, and the nature of the presenting problem) are considered contributory factors in the majority of encounters. . . . * * * Time . . . . The inclusion of time as an explicit factor beginning in CPT 1992 is done to assist physicians in selecting the most appropriate level of E/M services. It should be recognized that the specific times expressed in the visit code descriptors are averages, and therefore represent a range of times which may be higher or lower depending on actual clinical circumstances. * * * According to the E/M Guidelines, "[l]isted services [could] be modified under certain circumstances," with the "modifying circumstances" being "identified by the addition of [an] appropriate modifier code . . . ." Among the available "modifier codes" was one for "[p]rolonged [e]valuation and [m]anagement [s]ervices," which was explained in the E/M Guidelines as follows: When the face-to-face or floor/unit service(s) provided is prolonged or otherwise greater than that usually required for the highest level of E/M service within a given category, it may be identified by adding the modifier "-21" to the E/M code number or by use of the separate five digit modifier code 09921. A report may also be appropriate. The E/M Guidelines contained "[i]nstructions for [s]electing a [l]evel of E/M [s]ervice," which read, in pertinent part, as follows: * * * Review of Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three or these components (i.e., history, examination and medical decision making) are considered the key components in selecting a level of E/M services. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care. . . . The nature of the presenting problem and time are provided in some levels to assist the physician in determining the appropriate level of E/M service. Determine the Extent of History Obtained The extent of history is dependent upon critical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as followed: Problem Focused: chief complaint; brief history of present illness or problem. Expanded Problem Focused: chief complaint; brief history of present illness; problem pertinent system review. Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family and/or social history directly related to the patient's problems. Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history. * * * Determine the Extent of Examination Performed The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examinations that are defined as follows: Problem Focused: a limited examination of the affected body area or organ system. Expanded Problem Focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . . For the purposes of these CPT definitions, the following body areas are recognized Head, including the face Neck Chest, including breasts and axilla Abdomen Genitalia, groin, buttocks Back Each extremity For the purposes of these CPT definitions, the following organ systems are recognized Eyes Ears, Nose, Mouth and Throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Skin Neurologic Psychiatric Hematologic/Lymphatic/Immunologic Determine the Complexity of Medical Decision Making Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: the number of possible diagnoses and/or the number of management options that must be considered; the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed; and -The risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity. To qualify for a given type of decision making, two of the three elements [shown] below must be met or exceeded. Type of Decision Making: straightforward; Number of Diagnoses or Management Options: minimal; Amount and/or Complexity of Data to be Reviewed: minimal or none; Risk of Complications and/or Morbidity or Mortality: minimal Type of Decision Making: low complexity; Number of Diagnoses or Management Options: limited; Amount and/or Complexity of Data to be Reviewed: limited; Risk of Complications and/or Morbidity or Mortality: low Type of Decision making: moderate complexity; Number of Diagnoses or Management Options: multiple; Amount and/or Complexity of Data to be Reviewed: moderate; Risk of Complications and/or Morbidity or Mortality: moderate Type of Decision Making: High complexity; Number of Diagnoses or Management Options: extensive; Amount and/or Complexity of Data to be Reviewed: extensive; Risk of Complications and/or Morbidity or Mortality: high Select the Appropriate Level of E/M Services Based on the Following For the following categories/ subcategories, all of the key components, i.e., history, examination, and medical decision making, must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, new patient; . . . For the following categories/ subcategories, two of the three key components, (i.e., history, examination, and medical decision making) must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, established patient; . . . In the case where counseling and/or coordination of care dominates (more than 50%) of the physician/patient and/or family encounter (face-to-face time in the office . . . ), then time is considered the key or controlling factor to qualify for a particular level of E/M services. The extent of counseling and/or coordination of care must be documented in the medical record. At all times material to the instant case, the CPT referred to in Chapter 3 of the PCL Handbook contained the following codes and code descriptions for "E/M" office and other outpatient services: New Patient 99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: a problem focused history; a problem focused examination; and straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: an expanded problem focused history; an expanded problem focused examination; and straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. * * * 99203 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a detailed history; a detailed examination; and medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. * * * 99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. * * * 99205 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. * * * Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may or may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. * * * 99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a problem focused history; a problem focused examination; straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. * * * 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history; a detailed examination; medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. * * * 99215 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a comprehensive history; a comprehensive examination; medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. It is a rarity for an osteopathic internist to provide office services at the 99205 or 99215 "E/M" code level. Generally speaking, office services at the 99203 and 99213 "E/M" code levels are the most common types of office services that osteopathic internists provide. Typically, osteopathic internists provide a "higher percentage" of office services at the 99204 and 99214 "E/M" code levels than at the 99202 and 99212 "E/M" code levels.17 The experience or expertise of the provider is not a factor to be taken into consideration in determining the appropriate "E/M" code level. The Audit and Aftermath Commencing in 1998, AHCA conducted an audit of paid Medicaid claims submitted by Petitioner for services assertedly rendered from March 1, 1996, through March 17, 1998. The audit was undertaken because it had been determined, from a review of the Medicaid provider database maintained by AHCA, that Petitioner had billed for more "chest x-rays and various radiology [tests]" than the "average provider."18 Petitioner had submitted 2,571 Medicaid claims for services assertedly rendered during the Audit Period to 314 patients, for which he had received payments totaling $134,597.58. From the 314 Medicaid patients to whom Petitioner had assertedly provided services during the Audit Period, AHCA randomly selected, by computer, a "cluster sample" of 42, and asked Petitioner to produce the medical records he had on file for these 42 patients. Petitioner had submitted a total of 386 claims for services assertedly rendered to the 42 patients in the "cluster sample" during the Audit Period and had received a total of $20,823.33 in Medicaid payments for these services. Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's medical records request. Based on a preliminary review conducted by AHCA staff and a physician consultant (John Sullenberger, M.D.), AHCA determined that Petitioner had been overpaid a total $98,545.98 for the Medicaid claims he had submitted for services assertedly rendered during the Audit Period. After having been advised of this preliminary determination, Petitioner sent additional documentation to AHCA. The additional documentation was reviewed by AHCA staff and Dr. Sullenberger. Following this review, the overpayment was recalculated by AHCA and determined to be $94,208.27. As noted above, by letter dated June 29, 1999, Petitioner was notified of this recalculation and advised of his right to request an administrative hearing on the matter. After Petitioner requested such a hearing, in or around March of 2000, as a result of the Legislature's enactment of the "peer review" provisions of Section 409.9131, Florida Statutes, which became effective July 1, 1999, AHCA retained the services of Richard Thacker, D.O., an osteopathic physician, like Petitioner, Board-certified in internal medicine. Dr. Thacker received his medical education at Nova Southeastern University, College of Osteopathic Medicine, from which he graduated in 1992. After graduation, he obtained "internal medicine training" for three years in the internship and residency program at Delaware Valley Medical Center in Langhorne, Pennsylvania. In 1995, he returned to Florida, and has been in "active practice" as an osteopathic physician in the state since his return. His experience includes "working in Medicaid clinics." He currently practices with the Medical Group of North Florida, a Tallahassee "multi-specialty group with primary emphasis on general internal medicine." Aside from his practice, among other things, he serves as: the chairman of the Tallahassee Community Hospital's Department of Medicine; the Medical Director of Outpatient Services at Health South Rehabilitation Hospital of Tallahassee; the Medical Director of Long Term Care at Capital Health Care Center; the Medical Director of American Home Patient Home Health; and an Associate Professor for Clinical Instruction at Florida State University College of Medicine. At AHCA's request, Dr. Thacker reviewed all of the records that Petitioner had provided regarding the 42 patients in the "cluster sample" (including those records that had been furnished after June 29, 1999)19 to determine whether there was documentation to support the Medicaid claims relating to these patients that Petitioner had submitted for services assertedly rendered during the Audit Period.20 On or about May 15, 2000, after Dr. Thacker completed his review, the overpayment was again recalculated by AHCA and determined to be $84,486.25. On or about June 12, 2003, following a meeting between Dr. Thacker and Petitioner held the afternoon of the first day of hearing in this case, AHCA made another downward revision in its overpayment calculation, this time to $70,629.68.21 AHCA has made no additional revisions to its overpayment calculation in the instant case. It maintains that Petitioner received $70,629.68 in Medicaid overpayments for services claimed to have been provided during the Audit Period. Respondent's Exhibit 25 contains spreadsheets prepared by AHCA which identify all of the alleged overpaid claims (of the 386 reviewed) and, for each such claim, specify the amount of the alleged overpayment and AHCA's reason(s) for determining that an overpayment was made. Where AHCA alleges "upcoding" (that is, billing for a higher (and more costly) "level of E/M service" than Petitioner's documentation reveals was actually provided) or "inappropriate cod[ing]" of a surgical or radiological procedure, and no other billing deficiency is asserted, the procedure code deemed appropriate by AHCA, based on the documentation furnished by Petitioner, is also specified. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (as "not documented") those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been actually provided (by anyone). The monies Petitioner received for these claimed, but undocumented, services constitute overpayments. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (through entries made in the "not group member" columns thereof) those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been provided by Petitioner or under his "personal supervision," as that term was described in the materials Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements. The monies Petitioner received for these claimed services not documented as having been provided by him or under his "personal supervision" as required by the First and Second Provider Agreements constitute overpayments. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been "medically necessary," as that term was used in the materials Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements. The monies Petitioner received for these claimed services not documented as having been "medically necessary" as required by the First and Second Provider Agreements constitute overpayments. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (through entries made in the "levels of care" columns thereof) those claims (of the 386 reviewed) that were "upcoded."22 The documentation Petitioner has furnished AHCA supports "adjust[ed]" "levels of E/M service" no higher than those indicated in the "adjust" columns of the spreadsheets. For each "upcoded" claim, Petitioner was overpaid in an amount equal to what he received minus what he would have received had he billed at the "adjust[ed]" level specified on Respondent's Exhibit 25. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify those claims for radiological services that, following the meeting between Dr. Thacker and Petitioner, it was agreed were "inappropriate[ly] cod[ed]," and they further reflect the correct codes and reimbursement amounts for these "inappropriate[ly] cod[ed]" services. The difference between the amount Petitioner was reimbursed for each such "inappropriate[ly] cod[ed]" service and the correct reimbursement amount set forth on Respondent's Exhibit 25 represents an overpayment. As Respondent's Exhibit 25 indicates, the office services Petitioner claimed he provided Patient #79 on October 20, 1997, for which he billed Medicaid at the 99214 "E/M" code level, as well as the office services he claimed he provided Patient #203 on February 16, 1998, for which he billed Medicaid at the 99215 "E/M" code level, were wholly non- reimbursable inasmuch as the documentation concerning these office visits does not reveal that, in either case, the patient received services justifying reimbursement at even the lowest "E/M" code level (99211) for an established patient. As Respondent's Exhibit 25 also indicates, Petitioner's claim for the January 7, 1998, excision of a benign lesion from Patient #264's left ankle was "inappropriate[ly] coded." Given what the documentation Petitioner has furnished AHCA reveals about the size of the lesion and what needed to be done to remove it and close the resulting wound, in billing Medicaid for this service, Petitioner should have used the 11401 procedure code, instead of the 11404 procedure code, which has a higher reimbursement rate. In making its final overpayment calculation, AHCA determined, correctly, that Petitioner was overpaid a total of $11,913.23, or $30.86329051 per claim, for the 386 claims he had submitted seeking reimbursement from Medicaid for services assertedly rendered during the Audit Period to the 42 patients in the "cluster sample." Using a statistical formula that Petitioner has admitted is valid, AHCA extended these results to the total "population" of 2,571 Medicaid claims that Petitioner had submitted for services assertedly rendered during the Audit Period, and it correctly calculated that Petitioner had been overpaid a total of $70,629.68. Simple Mistake or Fraud? There has been no allegation made, nor proof submitted, that any of the overbillings referenced above were the product of anything other than simple mistake or inadvertence on Petitioner's part.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $70,629.68 in Medicaid overpayments for paid claims covering the period from March 1, 1996, through March 17, 1998, and requiring Petitioner to repay this amount to AHCA. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 28th day of January, 2004.
The Issue Does Petitioner, AHF MCO of Florida, Inc., d/b/a PHC Florida HIV/AIDS Specialty Plan (Positive), have standing to contest the intended award to Simply for Regions 10 and 11 or to seek rejection of all proposals? (Case No. 18-3507 and 18-3508) Should the intended decision of Respondent, Agency for Health Care Administration (Agency), to contract with Simply Healthcare Plans, Inc. (Simply), for Medicaid managed care plans for HIV/AIDS patients in Regions 10 (Broward County) and Region 11 (Miami-Dade and Collier Counties) be invalidated and all proposals rejected? (Case Nos. 18-3507 and 18-3508) Must the Agency negotiate with Petitioner, South Florida Community Care Network, LLC, d/b/a Community Care Plan (Community), about a plan to provide HIV/AIDS Medicaid managed care services in Region 10 because it was the only responsive proposer of services that was a Provider Service Network (PSN)? (Case No. 18-3512) Must the Agency negotiate with Community to provide Medicaid managed care services in Region 10 for people with Serious Mental Illnesses because Community is a PSN? (Case No. 18-3511) Must the Agency contract with Community to provide Medicaid managed care services for Children with Special Needs in Region 10 because Community is a PSN? (Case No. 18-3513) Must the Agency negotiate with Community to provide Medicaid managed care services for Child Welfare patients in Region 10 because Community is a PSN? (Case No. 18-3514)
Findings Of Fact THE PARTIES Agency: Section 20.42, Florida Statutes, establishes the Agency as Florida’s chief health policy and planning agency. The Agency is the single state agency authorized to select eligible plans to participate in the Medicaid program. Positive: Positive is a Florida not-for-profit corporation operating a Medicaid health plan dedicated to serving people with HIV/AIDS. Positive serves about 2,000 patients in Florida. Positive’s health plan is accredited by the Accreditation Association for Ambulatory Healthcare. Its disease management program is accredited by the National Committee for Quality Assurance. Currently, the Agency contracts with Positive for a SMMC HIV/AIDS Specialty Plan serving Regions 10 and 11. Simply: Simply is a Florida for-profit corporation operating a Medicaid health plan dedicated to serving people with HIV/AIDS. Currently, the Agency contracts with Simply to provide a SMMC HIV/AIDS Specialty Plan for Regions 1 through 3 and 5 through 11. Simply has maintained the largest patient enrollment of all HIV/AIDs plans in Florida since Florida started its statewide Medicaid managed care program. Community Care: Community is a Florida limited liability company. It is a PSN as defined in sections 409.912(1)(b) and 409.962(14), Florida Statutes. Staywell: Staywell is the fictitious name for WellCare of Florida, Inc., serving Florida’s Medicaid population. Sunshine: Sunshine State Health Plan (Sunshine) is a Florida corporation. It offers managed care plans to Florida Medicaid recipients. THE INVITATION TO NEGOTIATE TIMELINE On July 14, 2017, the Agency released 11 ITNs plans for Florida’s Medicaid managed care program in 11 statutorily defined regions. Region 10, Broward County, and Region 11, Miami-Dade and Collier Counties, are the regions relevant to this proceeding. Part IV of chapter 409, creates a statewide, integrated managed care program for Medicaid services. This program called Statewide Medicaid Managed Care includes two programs, Managed Medical Assistance and Long-term Care. Section 409.966(2), directs the Agency to conduct separate and simultaneous procurements to select eligible plans for each region using the ITN procurement process created by section 287.057(1)(c). The ITNs released July 14, 2017, fulfilled that command. The Agency issued 11 identical ITNs of 624 pages, one for each region, in omnibus form. They provided elements for four types of plans. Some elements were common to all types. Others were restricted to a specific plan type defined by intended patient population. The plan types are comprehensive plans, long-term care plus plans, managed medical assistance plans, and specialty plans. Section 409.962(16) defines “Specialty Plan” as a “managed care plan that serves Medicaid recipients who meet specified criteria based on age, medical condition, or diagnosis.” Responding vendors identified the plan type or types that they were proposing. The Agency issued Addendum No. 1 to the ITNs on September 14, 2017. On October 2, 2017, the Agency issued Addendum No. 2 to the ITNs. Addendum 2 included 628 questions about the ITNs and the Agency’s responses to the questions. Florida law permits potential responders to an ITN to challenge the specifications of an ITN, including the addendums. § 120.57(3)(b), Fla. Stat. Nobody challenged the specifications of the ITNs. As contemplated by section 287.057(c)(2), the Agency conducted “a conference or written question and answer period for purposes of assuring the vendors’ full understanding of the solicitation requirements.” Positive, Community, and Simply, along with United Healthcare of Florida, Inc., HIV/AIDS Specialty Plan (United), submitted responses to the ITN in Region 10 proposing HIV/AIDS Specialty Plans. Community was the only PSN to propose an HIV/AIDS plan for Region 10. Positive, Simply, and United submitted replies to the ITN for Region 11, proposing HIV/AIDS Specialty Plans. Community, United, Staywell, and one other provider submitted proposals to provide SMI Specialty Plan services in Region 10. Community was the only responding PSN. Community, Sunshine, and Staywell submitted proposals to provide Child Welfare Specialty Plans (CW) in Region 10. Community was the only PSN. Community, Staywell, and two others submitted proposals to offer Specialty Plans for Children with Special Needs (CSN) in Region 10. Community was one of two responding PSNs. Proposal scoring began November 6, 2017, and ended January 16, 2018. The Agency announced its intended awards on April 24, 2018. On April 24, 2018, the Agency issued its notices of intent to award specialty contracts in Regions 10 and 11. The following charts summarize the Agency’s ranking of the proposals and its intended awards. The two highest ranked plans, which the Agency selected for negotiations, are identified in bold. Region 10 – Children with Special Needs Respondent Intended Award Ranking Staywell No 1 Community No 2 Miami Children’s Health Plan, LLC No 3 Our Children PSN of Florida, LLC No 4 Region 10 – Child Welfare Respondent Intended Award Ranking Staywell No 1 Sunshine Yes 2 Molina Healthcare of Florida, Inc. No 3 Community No 4 Region 10 – HIV/AIDS Respondent Intended Award Ranking Simply Yes 1 United No 2 Community No 3 Positive No 4 Region 10 – Serious Mental Illness Respondent Intended Award Ranking Staywell Yes 1 United No 2 Florida MHS, Inc. No 3 Community No 4 Region 11 – HIV/AIDS Respondent Intended Award Ranking Simply Yes 1 United No 2 Positive No 3 All of the Specialty Plan awards noticed by the Agency went to bidders who also proposed, and received, comprehensive plan awards. The protests, referrals, and proceedings before the Division summarized in the Preliminary Statement followed the Agency’s announcement of its intended awards. TERMS The voluminous ITN consisted of a two-page transmittal letter and three Attachments (A, B, and C), with a total of 34 exhibits to them. They are: Attachment A, Exhibits A-1 through A-8, Attachment B, Exhibits B-1 through B-3, and Attachment C, Exhibits C-1 through C-8. The ITN establishes a two-step process for selecting: an evaluation phase and a negotiation phase. In the evaluation phase, each respondent was required to submit a proposal responding to criteria of the ITN. Proposals were to be evaluated, scored, and ranked. The goal of the evaluation phase was to determine which respondents would move to negotiations, not which would be awarded a contract. The top two ranking Specialty Plans per specialty population would be invited to negotiations. In the negotiation phase, the Agency would negotiate with each invited respondent. After that, the Agency would announce its intended award of a contract to the plan or plans that the Agency determined would provide the best value. Together, the attachments and exhibits combined instructions, criteria, forms, certifications, and data into a “one size fits all” document that described the information required for four categories of managed care plans to serve Medicaid patients. The ITN also provided data to consider in preparing responses. The transmittal letter emphasized, “Your response must comply fully with the instructions that stipulate what is to be included in the response.” The ITNs identified Jennifer Barrett as the procurement officer and sole point of contact with the Agency for vendors. The transmittal letter is reproduced here. This solicitation is being issued by the State of Florida, Agency for Health Care Administration, hereinafter referred to as “AHCA” or “Agency”, to select a vendor to provide Statewide Medicaid Managed Care Program services. The solicitation package consists of this transmittal letter and the following attachments and exhibits: Attachment A Instructions and Special ConditionsExhibit A-1 Questions TemplateExhibit A-2-a Qualification of Plan Eligibility Exhibit A-2-b Provider Service Network Certification of Ownership and Controlling InterestExhibit A-2-c Additional Required Certifications and StatementsExhibit A-3-a Milliman Organizational Conflict of Interest Mitigation Plan Exhibit A-3-b Milliman Employee Organizational Conflict of Interest AffidavitExhibit A-4 Submission Requirements and Evaluation Criteria InstructionsExhibit A-4-a General Submission Requirements and Evaluation Criteria Exhibit A-4-a-1 SRC# 6 - General Performance Measurement ToolExhibit A-4-a-2 SRC# 9 - Expanded Benefits Tool (Regional) Exhibit A-4-a-3 SRC# 10 - Additional Expanded Benefits Template (Regional)Exhibit A-4-a-4 SRC# 14 - Standard CAHPS Measurement Tool Exhibit A-4-b MMA Submission Requirements and Evaluation Criteria Exhibit A-4-b-1 MMA SRC# 6 - Provider Network Agreements/Contracts (Regional)Exhibit A-4-b-2 MMA SRC# 14 - MMA Performance Measurement Tool Exhibit A-4-b-3 MMA SRC# 21 - Provider Network Agreements/Contracts Statewide Essential Providers Exhibit A-4-c LTC Submission Requirements and Evaluation CriteriaExhibit A-4-c-1 LTC SRC# 4 - Provider Network Agreements/Contracts (Regional) Exhibit A-4-d Specialty Submission Requirements and Evaluation CriteriaExhibit A-5 Summary of Respondent CommitmentsExhibit A-6 Summary of Managed Care Savings Exhibit A-7 Certification of Drug-Free Workplace ProgramExhibit A-8 Standard Contract Attachment B Scope of Service - Core Provisions Exhibit B-1 Managed Medical Assistance (MMA) ProgramExhibit B-2 Long-Term Care (LTC) ProgramExhibit B-3 Specialty Plan Attachment C Cost Proposal Instructions and Rate Methodology NarrativeExhibit C-1 Capitated Plan Cost Proposal TemplateExhibit C-2 FFS PSN Cost Proposal Template Exhibit C-3 Preliminary Managed Medical Assistance (MMA) Program Rate Cell Factors Exhibit C-4 Managed Medical Assistance (MMA) Program Expanded Benefit Adjustment Factors Exhibit C-5 Managed Medical Assistance (MMA) Program IBNR Adjustment Factors Exhibit C-6 Managed Medical Assistance (MMA) Program Historical Capitated Plan Provider Contracting Levels During SFY 15/16 Time Period Exhibit C-7 Statewide Medicaid Managed Care Data BookExhibit C-8 Statewide Medicaid Managed Care Data Book Questions and Answers Your response must comply fully with the instructions that stipulate what is to be included in the response. Respondents submitting a response to this solicitation shall identify the solicitation number, date and time of opening on the envelope transmitting their response. This information is used only to put the Agency mailroom on notice that the package received is a response to an Agency solicitation and therefore should not be opened, but delivered directly to the Procurement Officer. The ITN describes the plans as follows: Comprehensive Long-term Care Plan (herein referred to as a “Comprehensive Plan”) – A Managed Care Plan that is eligible to provide Managed Medical Assistance services and Long-term Care services to eligible recipients. Long-term Care Plus Plan – A Managed Care Plan that is eligible to provide Managed Medical Assistance services and Long-term Care services to eligible recipients enrolled in the Long-term Care program. This plan type is not eligible to provide services to recipients who are only eligible for MMA services. Managed Medical Assistance (MMA) Plan – A Managed Care Plan that is eligible to provide Managed Medical Assistance services to eligible recipients. This plan type is not eligible to provide services to recipients who are eligible for Long-term Care services. Specialty Plan – A Managed Care Plan that is eligible to provide Managed Medical Assistance services to eligible recipients who are defined as a specialty population in the resulting Contract. Specialty Plans are at issue. The ITN did not define, describe, or specify specialty populations to be served. It left that to the responding vendors. Beyond that, the ITN left the ultimate definition of the specialty population for negotiation, saying in Section II(B)(1)(a) of Attachment B, Exhibit B-3, “[t]he Agency shall identify the specialty population eligible for enrollment in the Specialty Plan based on eligibility criteria based upon negotiations.” Some respondents directly identified the specialty population. Simply’s transmittal letter stated that it proposed “a Specialty plan for individuals with HIV/AIDS.” Positive’s response to Exhibit A-4-d Specialty SRC 4, eligibility and enrollment, stated, “the specialty population for the PHC [Positive] plan will be Medicaid eligible, male and female individuals from all age groups who are HIV positive with or without symptoms and those individuals who have progressed in their HIV disease to meet the CDC definition of AIDS.” Some others left definition of the specialty population to be inferred from the ITN response. The result is that the ITN left definition of the specialty populations initially to the respondents and ultimately to negotiations between the Agency and successful respondents. Petitioners and Intervenors describe the populations that they propose serving as HIV/AIDS patients, patients with SMI, CSN, and child welfare populations. ITN respondents could have proposed serving only cancer patients, serving only obstetric patients, or serving only patients with hemophilia. The part of the ITN requiring a respondent to identify the plan type for which it was responding offered only four alternative blocks to check. They were: “Comprehensive Plan,” Long-Term Care Plus Plan,” “Managed Medical Assistance Plan,” or “Specialty Plan.” Attachment A to the ITN, labeled “Instructions and Special Conditions,” provides an overview of the solicitation process; instructions for response preparation and content; information regarding response submission requirements; information regarding response evaluation, negotiations, and contract awards; and information regarding contract implementation. Exhibits A-1 to A-3 and A-5 to A-7 of the ITN contain various certifications and attestations that respondents had to prepare and verify. Exhibit A-4 contains submission requirement components (SRCs) to which respondents had to prepare written responses. Exhibit A-8 contains the state’s standard SMMC contract. ITN Exhibit A-4-a contains 36 general submission requirements and evaluation criteria (General SRCs). ITN Exhibit A-4-b contains 21 MMA submission requirements and evaluation criteria (MMA SRCs). ITN Exhibit A-4-c contains 13 LTC submission requirements and evaluation criteria (LTC SRCs). ITN Exhibit A-4-d contains five specialty submission requirements and evaluation criteria (Specialty SRCs). The responses that the 36 SRCs require vary greatly. Some are as simple as providing documents or listing items. Others require completing tables or spreadsheets with data. Consequently, responses to some SRCS apparently could be reviewed in very little time, even a minute or less. Others requiring narrative responses might take longer. Examples follow. General SRC 1 required a list of the respondent’s contracts for managed care services and 12 information items about them including things such as whether they were capitated, a narrative describing the scope of work; the number of enrollees; and accomplishments and achievement. General SRC 2 asked for documentation of experience operating a Medicaid health plan in Florida. General SRC 3 asked for information confirming the location of facilities and employees in Florida. General SRC 12 requested a flowchart and written description of how the respondent would execute its grievance and appeal system. It listed six evaluation criteria. MMA SRC 2 asks for a description of the respondent’s organizational commitment to quality improvement “as it relates to pregnancy and birth outcomes.” It lists seven evaluation criteria. MMA SRC 10 asks for a description of the respondent’s plan for transition of care between service settings. It lists six evaluation criteria including the respondent’s process for collaboration with providers. Specialty SRC 1 asks for detailed information about respondent’s managed care experience with the specialty population. Specialty SRC 5 asks for detailed information about the respondent’s provider network standards and provides five evaluation criteria for evaluating the answers. Exhibit A-8 of the ITN contains the standard SMMC contract. Attachment B and Exhibits B-1 to B-3 of the ITN contain information about the scope of service and core provisions for plans under the SMMC program. Attachment C and Exhibits C-1 to C-8 of the ITN contain information related to the cost proposals and rate methodologies for plans under the SMMC program. The ITN permitted potential respondents to submit written questions about the solicitation to the Agency by August 14, 2017. Some did. On September 14, 2017, the Agency issued Addendum No. 1 to the ITN. Among other things, Addendum No. 1 changed the anticipated date for the Agency’s responses to respondents’ written questions from September 15 to October 2, 2017. The Agency issued Addendum No. 2 to the ITN on October 2, 2017. Addendum No. 2 included a chart with 628 written questions from potential respondents and the Agency’s answers. Attachment A at A 10-(d) makes it clear that the answers are part of the addendum. Both Addendums to the ITN cautioned that any protest of the terms, conditions, or specifications of the Addendums to the ITN had to be filed with the Agency within 72 hours of their posting. No respondent protested. Instructions for the A-4 Exhibits included these requirements: Each SRC contains form fields. Population of the form fields with text will allow the form field to expand and cross pages. There is no character limit. All SRCs, marked as “(Statewide)” must be identical for each region in which the respondent submits a reply. For timeliness of response evaluation, the Agency will evaluate each “(Statewide)” SRC once and transfer the score to each applicable region’s evaluation score sheet(s). The SRCs marked as “(Regional)” will be specific and only apply to the region identified in the solicitation and the evaluation score will not be transferred to any other region. The instructions continue: Agency evaluators will be instructed to evaluate the responses based on the narrative contained in the SRC form fields and the associated attachment(s), if applicable. Each response will be independently evaluated and awarded points based on the criteria and points scale using the Standard Evaluation Criteria Scale below unless otherwise identified in each SRC contained within Exhibit A-4. This is the scale: STANDARD EVALUATION CRITERIA SCALE Point Score Evaluation 0 The component was not addressed. 1 The component contained significant deficiencies. 2 The component is below average. 3 The component is average. 4 The component is above average. 5 The component is excellent. The ITN further explained that different SRCs would be worth different “weights,” based on the subject matter of the SRC and on whether they were General, MMA, LTC, or Specialty SRCs. It assigned weights by establishing different “weight factors” applied as multipliers to the score a respondent received on a criteria. For example, “Respondent Background/Experience” could generate a raw score of 90. Application of a weight factor of three made 270 the maximum possible score for this criteria. “Oversight and Accountability” could generate a raw score of 275. A weight factor of one, however, made the maximum score available 275. General SRC 6 solicits HEDIS data. HEDIS is a tool that consists of 92 measures across six domains of care that make it possible to compare the performance of health plans on an “apples-to-apples” basis. SRC 6 states: The respondent shall describe its experience in achieving quality standards with populations similar to the target population described in this solicitation. The respondent shall include, in table format, the target population (TANF, ABD, dual eligible), the respondent’s results for the HEDIS measures specified below for each of the last two (2) years (CY 2015/ HEDIS 2016 and CY 2016/ HEDIS 2017) for the respondent’s three (3) largest Medicaid Contracts (measured by number of enrollees). If the respondent does not have HEDIS results for at least three (3) Medicaid Contracts, the respondent shall provide commercial HEDIS measures for the respondent’s largest Contracts. If the Respondent has Florida Medicaid HEDIS results, it shall include the Florida Medicaid experience as one (1) of three (3) states for the last two (2) years. The respondent shall provide the data requested in Exhibit A-4-a-1, General Performance Measurement Tool[.] x x x Score: This section is worth a maximum of 160 raw points x x x For each of the measure rates, a total of 10 points is available per state reported (for a total of 360 points available). The respondent will be awarded 2 points if their reported plan rate exceeded the national Medicaid mean and 2 points if their reported plan rate exceeded the applicable regional Medicaid mean, for each available year, for each available state. The respondent will be awarded an additional 2 points for each measure rate where the second year’s rate is an improvement over the first year’s rate, for each available state. An aggregate score will be calculated and respondents will receive a final score of 0 through 150 corresponding to the number and percentage of points received out of the total available points. For example, if a respondent receives 100% of the available 360 points, the final score will be 150 points (100%). If a respondent receives 324 (90%) of the available 360 points, the final score will be 135 points (90%). If a respondent receives 36 (10%) of the available 360 points, the final score will be 15 points (10%). The SRC is plainly referring to the broad Medicaid- eligible population when it says “the target population (TANF, ABD, dual eligible).” “Dual eligible” populations are persons eligible for Medicaid and Medicare. There, as throughout the ITN, the ITN delineates between a target population of all Medicaid-eligible patients and a specialty population as described in a respondent’s ITN proposal. The clear instructions for SRC 6 require, “Use the drop-down box to select the state for which you are reporting and enter the performance measure rates (to the hundredths place, or XX.XX) for that state's Medicaid population for the appropriate calendar year.” Community did not comply. General SRC 14 solicits similar data, in similar form using a similar tool, about a respondent’s Consumer Assessment of Healthcare Providers and Systems (CAHPS). CAHPS data is basically a satisfaction survey. It asks respondents to provide “in table format the target population (TANF, ABD, dual eligible) and the respondent’s results for the Consumer Assessment of Healthcare Providers and Systems (CAHPS) items/composites specified below for the 2017 survey for its adult and child populations for the respondent’s three (3) largest Medicaid Contracts (as measured by number of enrollees).” Just like General SRC 6 did with HEDIS data, General SRC 14 ITN instructed bidders to put their CAHPS data for the “target population (TANF, ABD, dual eligible)” “for the respondent’s three (3) largest Medicaid Contracts (measured by number of enrollees)” for multiple states into an excel spreadsheet “to the hundredths place[.]” Also, like General SRC 6, General SRC 14 includes an objective formula described in the ITN for scoring bidders’ CAHPS data. RANKING PROVISIONS Attachment A at (D)(4)(c)(2) stated: Each response will be individually scored by at least three (3) evaluators, who collectively have experience and knowledge in the program areas and service requirements for which contractual services are sought by this solicitation. The Agency reserves the right to have specific sections of the response evaluated by less than three (3) individuals. The ITN’s example of how total point scores would be calculated, discussed below, also indicated that some sections may be scored by less than three evaluators. The explanatory chart had a column for “[o]ther Sections evaluated by less than three (3) evaluators. ” The Agency’s policy, however, has been to assign at least three evaluators to score program specific SRCs. Attachment A at (D)(4)(e)(2) advised respondents how the agency will rank the competing responses. It was clear and specific, even providing an example of the process showing how the scores “will” be calculated. Step one of the explanatory chart stated that the Agency would calculate a total point score for each response. Step two stated that “[t]he total point scores will be used to rank the responses by an evaluator. . . .” Next, the rankings by the evaluator are averaged to determine the average rank for each respondent. This average ranking is critical because ranking is how the ITN said the Agency would select respondents for negotiation and how the Agency did select respondents for negotiation. The step two and step three charts, reproduced below, demonstrate that the ITN contemplated an evaluation process in which each response was to be evaluated in its entirety by three different evaluators, or maybe less than three, but indisputably in its entirety by those who evaluated it. This did not happen. Step 2 The total point scores will be used to rank the responses by evaluator (Response with the highest number of points = 1, second highest = 2, etc.). POINTS SUMMARY Evaluator A Evaluator B Evaluator C Evaluator D Respondent 446 Respondent 396 Respondent 311 Respondent 413 Respondent 425 Respondent 390 Respondent 443 Respondent 449 Respondent 397 Respondent 419 Respondent 389 Respondent 435 Respondent 410 Respondent 388 Respondent 459 Respondent 325 RANKING SUMMARY Evaluator A Evaluator B Evaluator C Evaluator D Respondent 1 1 Respondent 1 2 Respondent 1 4 Respondent 3 Respondent 2 2 Respondent 2 3 Respondent 2 2 Respondent 1 Respondent 3 4 Respondent 3 1 Respondent 3 3 Respondent 2 Respondent 4 3 Respondent 4 4 Respondent 4 1 Respondent 4 c) Step 3 An average rank will be calculated for each response for all the evaluators. Respondent 1 1+2+4+3=10÷4=2.5 Respondent 2 2+3+2+1=8÷4=2.0 Respondent 3 4+1+3+2=10÷4=2.5 Respondent 4 3+4+1+4=12÷4=3.0 PROVIDER SERVICE NETWORK PROVISIONS Florida law permits a PSN to limit services provided to a target population “based on age, chronic disease state, or medical condition of the enrollee.” This allows a PSN to offer a specialty plan. For each region, the eligible plan requirements of section 409.974(1) state, “At least one plan must be a provider service network if any provider service networks submit a responsive bid.” Section 409.974(3) says: “Participation by specialty plans shall be subject to the procurement requirements of this section. The aggregate enrollment of all specialty plans in a region may not exceed 10 percent of the total enrollees of that region.” The ITN addressed those requirements. The Negotiation Process section of Attachment A, Instructions and Special Conditions, says: The Agency intends to invite the following number of respondents to negotiation: Comprehensive Plans The top four (4) ranking Comprehensive Plans. Long-term Care Plus Plans The top two (2) ranking Long-term Care Plus Plans Managed Medical Assistance Plans The top two (2) ranking Managed Medical Assistance Plans Specialty Managed Medical Assistance Plans The top two (2) ranking Specialty Managed Medical Assistance Plans per specialty population. If there are no provider service networks included in the top ranked respondents listed above, the Agency will invite the highest ranked PSN(s) to negotiations in order to fulfill the requirements of Section 409.974(1), Florida Statutes and Section 409.981(1), Florida Statutes. Emphasis supplied. The ITN specifications in Section D.7, titled Number of Awards, state as follows about Specialty Plan awards: 7. Number of Awards In accordance with Sections 409.966, 409.974, and 409.981, Florida Statutes, the Agency intends to select a limited number of eligible Managed Care Plans to provide services under the SMMC program in Region 10. The Agency anticipates issuing the number of Contract awards for Region 10 as described in Table 5, SMMC Region, below, excluding awards to Specialty MMA Plans. Table 5 SMMC Region Region Total Anticipated Contract Awards Region 10 4 If a respondent is awarded a Contract for multiple regions, the Agency will issue one (1) Contract to include all awarded regions. The Agency will award at least one (1) Contract to a PSN provided a PSN submits a responsive reply and negotiates a rate acceptable to the Agency. The Agency, at its sole discretion, shall make this determination. A respondent that is awarded a Contract as a Comprehensive Plan is determined to satisfy the requirements in Section 409.974, Florida Statutes and Section 409.981, Florida Statutes and shall be considered an awardee of an MMA Contract and a LTC Contract. The Agency will issue one (1) Contract to reflect all awarded populations in all awarded regions. In addition to the number of Contracts awarded in this region, additional Contracts may be awarded to Specialty Plans that negotiate terms and conditions determined to be the best value to the State and negotiate a rate acceptable to the Agency. The Agency, at its sole discretion, shall make this determination. The Agency reserves the right to make adjustments to the enrollee eligibility and identification criteria proposed by a Specialty Plan prior to Contract award in order to ensure that the aggregate enrollment of all awarded Specialty Plans in a region will not exceed ten percent (10%) of the total enrollees in that region, in compliance with Section 409.974(3), Florida Statutes. If a respondent is awarded a Contract as a Specialty Plan and another plan type, the Agency will issue one (1) Contract to include all awarded populations in all awarded regions. A prospective vendor asked about the interplay of Specialty Plan options and the PSN requirements. The question and the answer provided in Addendum 2 follow: Q. Please clarify the number of PSN awards per region and how PSN awards will be determined based on the PSN's plan type (e.g., Comprehensive, LTC Plus, MMA, Specialty). As you know, Sections 409.974 and 409.981, Florida Statutes require one MMA PSN and one LTC PSN award per region (assuming a PSN is responsive) and the Agency has stated that an award to a Comprehensive Plan PSN will meet the requirements of both statutes. However, can the Agency further clarify whether other types of PSNs would meet the statutory requirements? Specifically, would a PSN LTC Plus award meet the requirements of Section 409.981, Florida Statutes? Similarly, would an award to a Specialty Plan PSN meet the requirements of Section 409.974, Florida Statutes? A. See Attachment A Instructions and Special Conditions, Section D Response Evaluations, and Contract Award, Sub-Section 7 Number of Awards. Yes, a PSN LTC Plus award would meet the requirements of Section 409.981(2). A Specialty Plan PSN would not meet the requirements of Section 409.974(1). The only reasonable interpretation of this answer is that Specialty Plan PSNs do not satisfy the requirement to contract with a responsive PSN imposed by section 409.974. None of the prospective vendors, including Community, challenged this clarification. EVALUATION PROCESS THE EVALUATORS The Agency selected 11 people to evaluate the proposals. The Agency assigned each person a number used to identify who was assigned to which task and to track performance of evaluation tasks. The procurement officer sent the evaluators a brief memo of instructions. It provided dates; described logistics of evaluation; emphasized the importance of independent evaluation; and prohibited communicating about the ITN and the proposals with anyone other than the procurement office. The Agency also conducted an instructional session for evaluators. Evaluator 1, Marie Donnelly: During the procurement, Ms. Donnelly was the Agency’s Chief of the Bureau of Medicaid Quality. She held this position for five years before resigning. This bureau bore responsibility for ensuring that the current SMMC plans met their contract requirements for quality and quality improvement measures. Her role specifically included oversight of Specialty Plans. Evaluator 2, Erica Floyd Thomas: Ms. Thomas is the chief of the Bureau of Medicaid Policy. She has worked for the Agency since 2001. Her Medicaid experience includes developing policies for hospitals, community behavioral health, residential treatment, and contract oversight. Before serving as bureau chief, she served as an Agency administrator from 2014 through 2017. Ms. Thomas oversaw the policy research and development process for all Medicaid medical, behavioral, dental, facility, and clinic coverage policies to ensure they were consistent with the state Plan and federal Medicaid requirements. Evaluator 3, Rachel LaCroix, Ph.D.: Dr. LaCroix is an administrator in the Agency’s Performance Evaluation and Research Unit. She has worked for the Agency since 2003. All her positions have been in the Medicaid program. Dr. LaCroix has served in her current position since 2011. She works with the performance measures and surveys that the current SMMC providers report to the Agency. Dr. LaCroix is a nationally recognized expert on healthcare quality metrics like HEDIS. She is also an appointee on the National Association of Medicaid Directors’ task force for national performance measures. Evaluator 4, Damon Rich: Mr. Rich has worked for the Agency since April 2009. He is the chief of the Agency’s Bureau of Recipient and Provider Assistance. This bureau interacts directly with AHCA’s current SMMC care providers about any issues they have, and with Medicaid recipients, usually about their eligibility or plan enrollment. Before Mr. Rich was a bureau chief, he worked as a field office manager for the Agency. Mr. Rich’s experience as bureau chief and field office manager includes oversight of the current SMMC Specialty Plans. Evaluator 5. Eunice Medina: Ms. Medina is the chief of the Agency’s Bureau of Medicaid Plan Management, which includes a staff of over 60 individuals, who manage the current SMMC contracts. Her experience and duties essentially encompass all aspects of the current SMMC plans. Ms. Medina started working with the Agency in 2014. Evaluator 6, Devona “DD” Pickle: Ms. Pickle most recently joined the Agency in 2011. She also worked for the Agency from November 2008 through November 2010. Ms. Pickle’s Agency experience all relates in some way to the Medicaid program. Since March 2013, Ms. Pickle has served as an administrator over managed care policy and contract development in the Bureau of Medicaid Policy. Her job duties include working with the current SMMC contractors. Ms. Pickle is also a Florida licensed mental health counselor. Evaluator 7, Tracy Hurd-Alvarez: Ms. Hurd-Alvarez has worked for the Agency’s Medicaid program since 1997. Since 2014, she has been a field office manager, overseeing compliance monitoring for all the current SMMC contractors. Before assuming her current position, Ms. Hurd-Alvarez implemented the LTC SMMC program. Evaluator 8, Gay Munyon: Ms. Munyon is currently the Chief of the Bureau of Medicaid Fiscal Agent Operations. Ms. Munyon began working with the Agency in April 2013. Ms. Munyon’s bureau oversees fulfillment of the Agency’s contract with the current SMMC fiscal agent. Her unit’s responsibilities include systems maintenance and modifications and overseeing the fiscal agent, which answers phone calls, processes claims, and processes applications. Ms. Munyon has 25 years of experience working with the Medicaid program. Evaluator 9, Laura Noyes: Ms. Noyes started working for the Agency in April 2011. Her years of Agency experience all relate to the Medicaid program, including overseeing six current comprehensive managed care plans by identifying trends in contractual non-compliance. Evaluator 10, Brian Meyer: Mr. Meyer is a CPA, who has worked for the Agency in the Medicaid program since 2011. He is currently chief of the Bureau of Medicaid Data Analytics. Mr. Meyer’s primary responsibility is overseeing the capitation rates for the current SMMC contractors. His experience includes Medicaid plan financial statement analysis, surplus requirement calculation analysis and, in general, all types of financial analysis necessary to understand financial performance of the state’s Medicaid plans. Evaluator 11, Ann Kaperak: Since April 2015, Ms. Kaperak has served as an administrator in the Agency’s Bureau of Medicaid Program Integrity. Ms. Kaperak’s unit oversees the fraud and abuse efforts of the current SMMC plans. She also worked for the Medicaid program from November 2012 through May 2014. Ms. Kaperak worked as a regulatory compliance manager for Anthem/Amerigroup’s Florida Medicaid program between May 2014 and April 2015. Positive and Community challenge the Agency’s plan selections by questioning the qualifications of the evaluators. The first part of their argument is that the evaluators did not have sufficient knowledge about HIV/AIDS and its treatment. The evidence does not prove the theory. For instance, Positive’s argument relies upon criticizing the amount of clinical experience evaluators had managing patients with HIV/AIDS. That approach minimizes the fact that the managed care plan characteristics involve so much more than disease- specific considerations. For instance, many of the components require determining if the respondent provided required documents, verifying conflict of interest documents, management structure, quality control measures, and the like. General SRCs asked for things like dispute resolution models (SRC 16), claims processing information (SRC 17), and fraud and abuse compliance plans (SRC 31). MMA SRCs included criteria, like telemedicine (SRC 4), demonstrated progress obtaining executed provider agreements (SRC 6), and a credentialing process (SRC 12). Specialty SRCs included criteria like copies of contracts for managed care for the proposed specialty population (SRC 1), specific and detailed criteria defining the proposed specialty population (SRC 4), and the like. The evidence does not prove that disease-specific experience is necessary to evaluate responses to these and other SRCs. SRC 6 involving HEDIS data and SRC 14 involving CAHPS data are two good examples. They required respondents to input data into a spreadsheet. All the evaluators had to do was determine what those numbers showed. Evaluation did not require any understanding of disease or how the measures were created. All the evaluator had to know was the number in the spreadsheet. The second part of the evaluator qualification criticisms is that the evaluators did not give adequate weight to some responses. Positive and Community just disagree with the measures requested and the evaluation of them. They conclude from that disagreement that the evaluators’ qualifications were deficient. The argument is not persuasive. The last sentence of paragraph 69 of Positive’s proposed recommended order exemplifies the criticisms of Positive and Community of the evaluators’ qualifications. It states, “The fact that PHC [Positive] was ranked last among competing HIV plans shows that the SRC evaluators did not understand enough about managing individuals with HIV/AIDs to score its proposal competently.” The argument is circular and “ipse dixit”. It does not carry the day. The collective knowledge and experience of the evaluators, with a total of 128 years of Medicaid experience, made them capable of reasonably evaluating the managed care plan proposals, including the Specialty plan proposals. The record certainly does not prove otherwise. EVALUATION PROCESS The Agency assigned the evaluators to the SRCs that it determined they were qualified to evaluate and score. The Agency did not assign entire responses to an evaluator for review. Instead it elected a piecemeal review process assigning various evaluators to various sections, the SRCs of each response. Paragraph 30 of the Agency’s proposed recommended order describes this decision as follows: Although the ITN had contemplated ranking each vendor by evaluator, based on an example in the ITN, such ranking presumed a process where all evaluators scored all or nearly all of the responses to the ITN, which had occurred in the procurement five years ago. In this procurement, each evaluator reviewed only a subset of SRCs based on their knowledge, and experience; therefore, ranking by evaluator was not logical because each had a different maximum point score. The initial SRC scoring assignments were: General SRCs 1 through 4, LTC SRCs 1 and 2, and Specialty SRC 1: Marie Donnelly, Laura Noyes, and Brian Meyer. General SRCs 5 through 8, MMA SRCs 1 through 7, LTC SRCs 3 and 4, and Specialty SRCs 1 and 2: Marie Donnelly, Erica Floyd- Thomas, and Rachel LaCroix. General SRCs 9 through 14, MMA SRCs 8 through 11, LTC SRCs 5 through 7, and Specialty SRC 4: Damon Rich, Eunice Medina, and DD Pickle. General SRCs 15 through 17, MMA SRCs 12 and 13, and LTC SRCs 8 through 10: Damon Rich, Tracy Hurd-Alvarez, Gay Munyon. General SRCs 18 through 25, MMA SRCs 14 through 20, LTC SRCs 11 and 12, and Specialty SRC 5: Erica Floyd-Thomas, Eunice Medina, and DD Pickle. General SRCs 26 through 33 and LTC SRC 13: Gay Munyon, Ann Kaperak, and Brian Meyer. General SRCs 34 through 36 and MMA SRC 21: Marie Donnelly, Rachel LaCroix, and Tracy Hurd-Alvarez. The ranking process presented in the ITN and described in paragraphs 62-64, contemplated ranking each respondent by evaluator. The Agency carried this process over from an earlier procurement. In this procurement, despite what the ITN said, the Agency assigned responsibilities so that each evaluator reviewed only a subset of SRCs. Therefore, the ranking of responses by evaluator presented in the ITN could not work. It was not even possible because no one evaluator reviewed a complete response and because each SRC had a different maximum point score. Instead, the Agency, contrary to the terms of the ITN, ranked proposals by averaging the “total point scores” assigned by all of the evaluators. The Agency considered issuing an addendum advising the parties of the change. The addendum would have informed the respondents and provided them an opportunity to challenge the change. The Agency elected not to issue an addendum. EVALUATION AND SCORING The evaluators began scoring on November 6, 2017, with a completion deadline of December 29, 2017. The 11 evaluators had to score approximately 230 separate responses to the ITNs. The evaluators had to score 67,175 separate items to complete the scoring for all responses for all regions for all types of plans. No one at the Agency evaluated how much time it should take to score a particular item. None of the parties to this proceeding offered persuasive evidence to support a finding that scoring any particular item would or should take a specific length of time or that scoring all of the responses would or should take a specific length of time. Evaluators scored the responses in conference room F at the Agency’s headquarters. This secure room was the exclusive location for evaluation and scoring. Each evaluator had a dedicated workspace equipped with all tools and resources necessary for the task. The workspaces included a computer terminal for each evaluator. The system allowed evaluators to review digital copies of the ITN and proposals and to enter evaluation points in spreadsheets created for the purpose of recording scores. Evaluators also had access to hard copies of the proposals and the ITN. The Agency required evaluators to sign in and to sign out. The sign-in and sign-out sheets record the significant amount of time the evaluators spent evaluating proposals. Evaluators were not permitted to communicate with each other about the responses. To minimize distractions, the Agency prohibited cell phones, tablets and other connected devices in the room. The Agency also authorized and encouraged the evaluators to delegate their usual responsibilities. Agency proctors observed the room and evaluators throughout the scoring process. They were available to answer general and procedural questions and to ensure that the evaluators signed in and signed out. A log sheet documented how much time each evaluator spent in the scoring conference room. Some evaluators took extensive notes. For example, Ms. Median took over 200 pages of notes. Similarly, Ms. Munyon took nearly 400 pages of typewritten notes. The evaluators worked hard. None, other than Dr. LaCroix, testified that they did not have enough time to do their job. The computer system also automatically tracked the evaluators’ progress. Tracking reports showed the number of items assigned to each evaluator and the number of scoring items completed. The first status report was generated on December 8, 2017, approximately halfway through the scheduled scoring. At that time, only 28 percent of the scoring items were complete. Ms. Barrett usually ran the status reports in the morning. She made them available to the evaluators to review. The pace of evaluation caused concern about timely completion and prompted discussions of ways to accelerate scoring. Because it was clear that the majority of the evaluators would not complete scoring their SRCs by December 29, 2017, the Agency extended the scoring deadline to January 12, 2018. It also extended the hours for conference room use. Most respondents filed proposals for more than one type of plan and more than one region. This fact combined with the provision in the instructions saying that all statewide SRC responses must be identical for each region and that scores would transfer to each applicable region’s score sheets, enabled evaluators to score many SRCs just once. The system would then auto-populate the scores to the same SRC for all proposals by that respondent. This time saving measure permitted scoring on many of the items to be almost instantaneous after review of the first response to an SRC. The fact that so many respondents submitted proposals for so many regions and types of plans provided the Agency another opportunity for time-saving. The Agency loaded Adobe Pro on the evaluators’ computers as a timesaving measure. This program allowed the evaluators to compare a bidder’s Comprehensive Plan Proposal to the same company’s regional and Specialty Plan proposals. If the Adobe Pro comparison feature showed that the proposal response was the same for each plan, the Agency permitted evaluators to score the response once and assign the same score for each item where the respondent provided the same proposal. This speeded scoring. It, however, meant that for SRCs where evaluators did this, that they were not reviewing the SRC response in the specific context of the specialty plan population, each of which had specific and limited characteristics that made them different from the broader General and MMA plan populations. This is significant because so many SRCs required narrative responses where context would matter. There is no Specialty SRCs A-4 instruction requirement for specialty plans analogous to the requirement that responses for statewide SRCs must be identical for each region. In other words, the instructions do not say all SRCs marked as statewide must be identical for each specialty plan proposal and that the Agency will evaluate each Statewide SRC once and transfer the score to each applicable Specialty Plan score. In fact, according to the procurement officer, the Agency expected that evaluators would separately evaluate and score the statewide SRCs for Comprehensive Plans and for Specialty Plans, even if the same bidder submitted them. Despite the Agency’s expectation and the absence of an authorizing provision in the ITN, many evaluators, relying on the Adobe Pro tool, copied the SRC scores they gave to a respondent’s comprehensive plan proposal to its specialty plan proposal if the respondent submitted the same response to an SRC for a Comprehensive Plan and a Specialty Plan. For instance, Ms. Thomas (Evaluator 2) and Ms. Munyon (Evaluator 8) did this to save time. Ms. Donnelly (Evaluator 1) did this even when the comprehensive and specialty responses were not identical. This does not amount to the independent evaluation of the responses pledged by the ITN. On separate days, Evaluator 1 scored 1,315 items, 954 items, 779 items and 727 items. On separate days, Evaluator 2 scored 613 items, 606 items, 720 items, 554 items and 738 items. Evaluator 4 scored 874 items on one day. Evaluator 5 scored 813 items in one day. Evaluator 6 scored 1,001 items in one day. Evaluator 8 scored 635 items in one day. The record does not identify the items scored. It also does not permit determining how many of the item scores resulted from auto-population or assignment of scores based upon previous scoring of an identical response. It bears repeating, however, that the record does not support any finding on how long scoring the response to one SRC or an entire response could reasonably be expected to take. Even with the extended scoring period and time-saving measures, the Agency concluded that Evaluator 3 would not be able to finish all of the SRCs assigned to her. Rather than extend the deadline for scoring a second time, the Agency decided to reassign the nine of Evaluator 3’s SRCs that she had not begun scoring to two other evaluators. The Agency did not include scores of other SRCs for which Evaluator 3 had not completed scoring. The Agency only counted Evaluator 3’s scores for an SRC if she scored the SRC for everyone. The result was that only two people scored nine of the Specialty Plan SRCs. The Agency did not reassign all of Evaluator 3’s SRCs’. It only reassigned the SRCs to evaluators who were qualified to evaluate the items, who were not already assigned those items to score, and who had already finished or substantially completed their own evaluations. The decision to reassign the SRCs was not based on any scoring that had already been completed. The Agency did not allow changes to data submitted by any of the vendors. It allowed vendors to exchange corrupted electronic files for ones which could be opened and allowed vendors to exchange electronic files to match up with the paper copies that had been submitted. The Agency allowed Community to correct its submission where it lacked a signature on its transmittal letter and allowed Community to exchange an electronic document that would not open. It did not allow Community to change its reported HEDIS scores, which were submitted in the decimal form required by the instructions. Community erred in the numbers that it reported. There is no evidence showing that other vendors received a competitive or unfair advantage over Community in the Agency’s review of the SMI Specialty Plan submission for Region 10. There was no evidence that the Agency allowed any other vendors to change any substantive information in their submittals for that proposed specialty in that region. HEIDIS ISSUES Positive asserts that Simply’s proposal is non- responsive because Simply submitted HEDIS data from the general Medicaid population in response to SRC 6 and MMA SRC 14. Positive contends that Simply obtained a competitive advantage by supplying non-HIV/AIDS HEDIS data in response to SRC 6 and MMA SRC 14 because HIV/AIDS patients are generally a sicker group and require more care and because some HEDIS measures cannot be reported for an HIV/AIDS population. HEDIS stands for Healthcare Effectiveness and Data Information Set and is a set of standardized performance measures widely used in the healthcare industry. The instructions for both SRC 6 and MMA SRC 14 provide, in relevant part: The respondent shall describe its experience in achieving quality standards with populations similar to the target population described in this solicitation. The respondent shall include in table format, the target population (TANF, ABD, dual eligible), the respondent’s results for the HEDIS measures specified below for each of the last two (2) years (CY 2015/HEDIS 2016 and CY 2016/HEDIS 2017) for the respondent’s three (3) largest Medicaid Contracts (measured by number of enrollees). If the respondent does not have HEDIS results for at least three (3) Medicaid Contracts, the respondent shall provide commercial HEDIS measures for the respondent’s largest Contracts. If the Respondent has Florida Medicaid HEDIS results, it shall include the Florida Medicaid experience as one (1) of three (3) states for the last two (2) years. (JE 1 at 75 (SRC 6); JE 1 at 158 (MMA SRC 14)). SRC 6 and MMA SRC 14 instruct respondents to provide HEDIS measures for “the target population (TANF, ABD, dual eligible).” Id.. TANF, ABD, and dual eligible are eligibility classifications for the Medicaid population. The Agency sought information regarding the target Medicaid-eligible population, even from respondents proposing a Specialty Plan, because Specialty Plans are required to serve all of the healthcare needs of their recipients, not just the needs related to the criteria making those recipients eligible for the Specialty Plan. Following the instructions in SRC 6 and MMA SRC 14, Simply provided HEDIS data from the Medicaid-eligible population for its three largest Medicaid contracts as measured by the total number of enrollees. For the requested Florida HEDIS data, Simply utilized legacy HEDIS data from Amerigroup Florida, Inc., a Comprehensive Plan. Amerigroup and Simply had merged in October of 2017. Therefore, at the time of submission of Simply’s proposal, the HEDIS data from Amerigroup Florida was the data from Simply’s largest Medicaid contract in Florida for the period requested by the SRCs. Positive asserts that the Agency impermissibly altered scoring criteria after the proposals were submitted when the Agency corrected technical issues within a HEDIS Measurement Tool spreadsheet. SRC 6 and MMA SRC 14 required the submission of numeric data for the requested HEDIS performance measures. To simplify submission of the numeric data for the requested HEDIS performance measures, the Agency required respondents to utilize a HEDIS Measurement Tool spreadsheet. The evaluation criteria for SRC 6 and MMA SRC 14 provided that respondents will be awarded points if the reported HEDIS measures exceed the national or regional mean for such performance measures. Some respondents, including Positive, entered “N/A,” “small denominator,” or other text inputs into the HEDIS Measurement Tool. During the evaluation and scoring process, the Agency discovered that if a respondent input any text into the HEDIS Measurement Tool, the tool would assign random amounts of points, even though respondents had not input measureable, numeric data. The Agency reasonably resolved the problem by removing any text and inserting a zero in place of the text. The correction of the error in the HEDIS Measurement Tool prevented random points from being awarded to respondents and did not alter scores in any way contrary to the ITN. It was reasonable and fair to all respondents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order rejecting all r esponses to the ITNs to provide a Medicaid Managed Care plan for patients with HIV/AIDS in Regions 10 and 11. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order inviting Community to negotiate to provide Medicaid Managed Care plan in Region 10 for patients with serious mental illness. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order inviting Community to negotiate to provide a Medicaid Managed Care plan in Region 10 for patients with serious mental illness. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order inviting Community to negotiate to provide a Medicaid Managed Care plan in Region 10 for c hild w elfare specialty services. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order awarding Wellcare of Florida, Inc., d/b/a Staywell Health Plan of Florida, a contract for a specialty Medicaid Managed Care plan for patients with Serious Mental Illness in Region 10. Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Petition in Case No. 18-3513. DONE AND ENTERED this day of , , in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 day of , .
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Department of Health and Rehabilitative Services (HRS), acted pursuant to proper legal authority in terminating the Petitioner's certification as an "independent support coordinator" (ISC) under the program known as the Developmental Services Home and Community-Based Services Waiver (Medicaid Waiver Program).
Findings Of Fact The Petitioner was a resident of Havana, Florida, and maintained her office at her home at times pertinent hereto. She has a degree from Florida A&M University and a number of years of occupational experience in developmental and social services. After receiving the required training, she was certified as an ISC under contract with HRS in the Medicaid Waiver Program. HRS is an agency of the State of Florida. It is charged, as pertinent hereto, with administering and regulating the delivery of services to developmentally-disabled persons through the Medicaid Waiver Program, including the contracting with ISC's, such as the Petitioner, who provide such services to developmentally-disabled clients under this program. ISC's are independent contractors who are certified by HRS on an annual basis to provide coordination services for developmentally-disabled clients, which means that they insure that appropriate medical and social services are located, obtained and delivered to such clients. The ISC's have access to HRS computer terminals at their work sites so that they can record the number of time units (quarter hours, etc.) for which they serve clients and the amount of monies due for the services and time units provided to clients. They directly bill HRS for these services, simply by entering the billing information into the HRS medicaid computer system. Thus, great reliance is placed by HRS on the honesty and accuracy of the ISC's billings, subject to HRS' authority to audit billings and obtain recoupment for excessive billing. HRS administers the Medicaid Waiver Program for clients who are qualified for medicaid benefits and properly enrolled. Under this program, they are permitted to live at home or in some other community/residential facility and are provided social services through a network of care providers. This is done pursuant to a "support plan" which is developed and implemented according to the clients' psychological, emotional, medical and social needs. It is the function of an ISC to manage and coordinate the delivery of services to the client. In doing so, the ISC interacts with and communicates with the client's family, social worker, and care providers to determine the appropriate network of services that would best serve him. The ISC assists the client in securing the needed services, sees that those services are properly and satisfactorily delivered and that they conform to the support plan. Each ISC is required to maintain contemporaneous case notes, which reflect the actual date, time and description of all services performed for a client. An integral part of the support plan is the "cost plan" which contains a budget allocated to each client for the purpose of needed services. All services must be provided for in that cost plan. Any services not provided for in the cost plan are not normally permitted, although they may be if an amendment to the cost plan is approved by HRS. Each cost plan contains an allocation of 240 "quarter hours" budgeted annually for the services of an ISC for clients. Each ISC bills time based upon quarter hour increments. Time is billed by the ISC based upon the daily accrual of quarter hours. For instance, if an ISC provides ten minutes of service during a particular day for a given client, the ISC is permitted to bill one quarter hour of time to the client's account. If an ISC provides services at three different times during the same day, for five minutes each time, the daily accrual is one quarter hour. If an ISC provides services at two different times during the day, for ten minutes each time, the daily accrual of time billable is two quarter hours. Every ISC is responsible for billing his or her time and any charges for vendor services directly into the medicaid computer billing system. Each ISC receives a security clearance for access to the client accounts. Persons without a clearance are prevented from entering time or charges to the client account. Only services which have been approved in the support plan may be billed. The ISC's time involved in administrative duties, such as preparing case notes and billing information, undergoing computer training or conducting meetings with supervisors concerning administrative matters and training is not billable to the client's medicaid account. "Double billing" is not permitted. That is to say that different clients may not be billed for services for the same time period. For instance, if an ISC makes a single house call to interview a client and briefly speaks with another client at the same residence during the course of that interview, the ISC is not permitted to bill one quarter hour to each client during the time period involved. Neither is "multiple billing" permitted. That is, different clients may not be billed for a single service, even during different time periods. This would occur, for instance, if an ISC contacts a transportation service vendor to obtain transportation for one client for a quarter hour period and the same vendor for the following quarter hour on behalf of another client and bills a separate quarter hour and the cost of the service also to the second client. In reality, one transportation trip and service was involved with the same vendor during a one-half hour period in this example. Each ISC is required to maintain case notes of all activities performed. No activity may be billed to the Medicaid Waiver Program which is not supported by case notes which show the identify of the client, the date of the service, the time of the service, and the description of the service. Billing without this supporting documentation, contemporaneously recorded, is not permitted. Case notes must reflect truly contemporaneous time and activity. It is not permissible, for instance, to "make up" time spent, but unbilled, for whatever reason, during a prior billing cycle by entering that time hypothetically during a subsequent billing cycle. If such is done, it amounts to falsification of the ISC's case notes, and, of course, it is not appropriate to bill for activities which did not occur. The policy of the Medicaid Waiver Program, as shown by witness Trejo, who helped formulate the policy over the last two and one-half years, and witness Brown, is to promote a client's free and unfettered choice of an ISC. This is done by providing each client with certain information and promotional materials about all of the ISC's available. The ISC is required by HRS to provide HRS with the written materials containing information about that ISC. HRS then insures that these materials are delivered to clients by mail. Each client is provided with a designation form for the written selection of an ISC. HRS undertakes no solicitation or promotion on behalf of particular ISC's and does not try to influence client choices of ISC's. Certification Training ISC's must successfully complete certain training before they are certified and allowed to perform services. They are required to complete 34 hours of Statewide training known as "living everyday lives". They must also complete 24 hours of district-specific training, called simply "ISC training", which covers many topics, including Medicaid Waiver administration, values defining proper roles, planning, plan implementation, resource development, client eligibility, care providers, services provided, billing, client satisfaction, client rights issues, and residential placement. They are also required to be trained in HRS rules and policies concerning the Medicaid Waiver Program, the maintaining of records, relevant law, the documentation of their services, coordination with sub-district contracts, the confidentiality requirements, billing requirements, training in the use of the ABC computer system, and proper invoicing. During the course of the ISC training, the Petitioner was provided with a copy of proposed Rule 10F-13, Florida Administrative Code, and the related policy clarifications of the policy expressed in that rule. That rule, while not yet adopted, constitutes the agency policy for the conduct and administration of the Medicaid Waiver Program, as established by the HRS witnesses, particularly witness Trejo, who was the key person in developing that policy. (See Respondent's Exhibit 36 in evidence). The Petitioner made an application to be certified as an ISC on December 27, 1994. As a part of that application, the Petitioner executed certain "assurances", as part of a medicaid provider agreement. The Petitioner then attended and completed the above-referenced ISC training. In addition, the Petitioner received additional individual training from Ms. Hall and Ms. Brown of HRS, as well as numerous consultations with Ms. Brown concerning various administrative matters and the proper use and operation of the computer record and billing system. The Petitioner was then certified as an ISC for District 2, effective July 1, 1994. That certification lasted until the subject termination on January 4, 1995. During the time of her service as an ISC contractor, the Petitioner provided services to 15 clients, including J.S., M.E., A.W., S.E.Jr., W.M., W.R., G.T., J.R., R.S., H.M., R.M., W.O., M.C., and M.C. In cases where an ISC has deviated from a client's support or cost plan, the ISC is permitted an opportunity to propose a "corrective action plan". The corrective action plan provides a guide for how the ISC can remedy identified problems, within an acceptable time period, concerning the ISC's performance or billing operations. Failure to undertake and satisfy a corrective action plan is a basis for termination under HRS' regularly-followed policy. In the past, ISC's with identified billing problems have undertaken corrective action plans, and as part of those plans, among other requirements, have immediately reimbursed the amounts improperly billed. In one case, an ISC was required to terminate an employee, who was the source of many billing and documentation problems. In one case, an ISC was placed on a conditional, probationary certification status due to billing and documentation problems. Within 90 days after an ISC is certified, each ISC undergoes a monitoring review, in which district developmental services personnel audit the ISC's client records to determine compliance with program requirements. If the review is successful, ISC's are thereafter monitored annually for compliance. Should problems be detected in the initial monitoring review, or otherwise come to the attention of HRS through client or care provider information, additional reviews or audits may be undertaken as necessary to insure that the ISC is in compliance with the Medicaid Waiver Program policy requirements. After the Petitioner was certified, HRS, through Ms. Mary Brown circulated the written promotional materials and information provided to her concerning the services offered by the Petitioner as an ISC, in accordance with HRS policy. Ms. Brown delayed her normal mailing date in order to accommodate the late receipt of the Petitioner's promotional materials. Soon thereafter, Ms. Brown received a complaint from another ISC and calls from certain clients concerning solicitation of clients by the Petitioner, which is contrary to HRS policy. ISC's are not allowed to solicit clients. In order to address the complaint and obviate the effects of any improper solicitation of clients, Ms. Brown accompanied the Petitioner and the complaining ISC to the homes of various clients in order to conduct interviews with them. Ms. Brown provided the clients with designation forms to be completed at that time; and several clients then chose the Petitioner as their ISC. Several clients did not choose the Petitioner. Ms. Brown, however, made no attempt to influence a client concerning which ISC the client chose. Billing and Record Irregularities Beginning in September of 1994, while reviewing certain records concerning the Petitioner's ISC operations, Mr. Trejo, the Management Review Specialist for the District 2 Developmental Services Program Office, in charge of management review of the Medicaid Waiver Program, discovered certain billing irregularities. Particularly, he discovered that the Petitioner had entered excessive billing requests for certain clients. Because of this initial inquiry and the results of it, he decided to conduct a more in-depth audit of the Petitioner's ISC operations, billings, and other records. During the next few weeks, he undertook a complete review of the billing and client records of the Petitioner. Additionally, the customary 90-day monitor review of the Petitioner's client files was conducted on December 6, 1994. Mr. Trejo's review revealed the following problems with the Petitioner's billing and records concerning her clients and their services. These were described in Mr. Trejo's testimony, corroborated by other HRS witnesses. That version of events is accepted as credible and reliable: Alteration of Case Notes to Increase Time Billed. R.Exhs. 6 and 7. Unauthorized Expenditures: Exceeding Cost Plan: ME: 332 quarter hours billed in 3 months; $782 overpayment as of 11/94. R.Exh. 8. JS: 185 quarter hours billed in 2 months; projected budget depletion in one month. R.Exh. 9. JR: 176 quarter hours billed in 3 months; projected budget depletion in 2 months. R.Exh. 10. MC: 131 quarter hours billed in 2 months; projected budget depletion in 3 months. R.Exh. 11. MC: 134 quarter hours billed in 2 months; projected budget depletion in 2 months. R.Exh. 12. RS: 177 quarter hours billed in 3 months; projected budget depletion in 1 month. R.Exh. 13. Non-Billable Services: JS: date 9/10/94; 12 units billed for training. R.Exhs. 31 and 39. c. Double Billing: JS/SR: date 11/01/94. R.Exh. 14. ME/MC: date 11/15/94. R.Exh. 15. ME/WO: date 10/12/94. R.Exh. 16. ME/JS: date 10/19/94. R.Exh. 17. AW/RM: date 10/12/94. R.Exh. 18. AW/HM: date 10/03/94. R.Exh. 19. AW/ME: date 09/14/94. R.Exh. 20. JS/JR: date 09/15/94. R.Exh. 21. d. Undocumented Billing: SR: date 11/1/94; 18 units worked, 30 units billed. R.Exh. 22. JR: date 8/30/94; 5 units worked, 15 units billed. R.Exh. 23. HM: date 9/8/94; 3 units worked, 4 units billed. R.Exh. 24. HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 24. HM: date 9/19/94; 0 units worked, 3 units billed. R.Exh. 25. HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 25. MC: date 10/17/94; 0 units worked, 4 units billed. R.Exh. 26. JR: date 9/17/94; 0 units worked, 3 units billed. R.Exh. 27. MC: date 10/6/94; 0 units worked, 4 units billed. R.Exh. 28. RJ: date 9/30/94; 0 units worked, 3 units billed. R.Exh. 29. RM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 30. WO: date 11/6/94; 2 units worked, 3 units billed. R.Exh. 31. Multiple Billing: HM/RM: date 9/30/94. SM/HM: date 10/3/94. HM/HM: date 11/25/94. HM/HM/SM/RM: dates 10/1/94 and 10/2/94. SM: dates 9/14/94 and 10/3/94. SM: dates 9/14/94, 9/15/94 and 9/16/94. R.Exh. 34. Falsification of Case Notes: MC: date 11/2/94; 24 units, including meeting with Lynn Daw that did not occur. R.Exh. 32; Tmny. Daw JR: date 9/2/94; 23 units, including meeting with Arlene Walker that did not occur because Ms. Walker was out of town. R.Exh. 33; Tmny. Walker. Because of the problems found by Mr. Trejo, a meeting was called between the Petitioner and Mr. Trejo and others of HRS to discuss these problems and the need for correction. On December 2, 1994, Mr. Trejo wrote to the Petitioner, confirming the November 22, 1994 meeting, its subject matter and advising her that a corrective action plan concerning the over-expenditure of funds allocated to her clients needed to be submitted no later than December 19, 1994. No formal plan of corrective measures or actions was submitted by the Petitioner, although on December 15, 1994, she submitted a memorandum to Ms. Mary Brown of the District 2 Developmental Services Community Services Office (agency liaison for the Medicaid Waiver Program), concerning the over- expenditures, which simply listed the total amount of support coordination units (quarter hours) that were used to provide support to each client since November 30, 1994 and showed that there were insufficient hours available to transfer from the seven clients which the Petitioner showed as having some possibly transferable quarter hour units left at the time. Therefore, the Petitioner simply requested that additional units be approved. Only one of the four performance and billing problems discussed at the earlier meeting between the Petitioner and Mr. Trejo and other HRS personnel was addressed. (Respondent's Exhibit 4 in evidence, the Petitioner's memorandum of December 15, 1994). The Petitioner merely advised Ms. Brown in that memorandum of the lack of availability of funds within her overall budget to adjust for the over-expenditures already made, which HRS already knew. She did not actually submit a plan for corrective action to alleviate the over-expenditure mode of operation she had engaged in. No plan of action of any sort was proposed to HRS to correct the other billing and documentation problems identified by HRS, through Mr. Trejo. These include the potential conflict-of-interest posed by the Petitioner's son, working as a vendor provider, authorized by the Petitioner as the ISC. This situation includes the problem that Mr. Richardson, her son, was providing services to at least one client which were not authorized as part of that client's services plan (transportation to the movies and other destinations being provided, when dental hygiene training was the service authorized in the support plan). Through the certification process and upon certification, the Petitioner had been provided complete notice of the HRS Medicaid Waiver policy concerning billing and documentation requirements. This was part of the "assurances" on the application form and in the agreement entered into between the Petitioner and HRS. That application, the assurances contained therein, and the provisions of the agreement constituted notice to the Petitioner that failure to comply with the Medicaid Waiver policy embodied in the proposed rule and Policy Clarifications 1-8, as described in detail in Mr. Trejo's testimony, were grounds for termination, as was the fraudulent billing and documentation of records concerning clients. HRS, at no time, treated the Petitioner differently from any other ISC similarly situated, with respect to the Medicaid Waiver Program and policy. In fact, Ms. Brown and Ms. Hall spent a disportionate amount of time instructing and attempting to assist and support the Petitioner in the performance of her services, in proper record-keeping and computer billing methods. In view of the Petitioner's failure to conform to the policies described above, in terms of the billing and documentation violations referenced in the above Findings of Fact, and her failure to propose a meaningful plan of corrective action with regard thereto, HRS terminated her certification as an ISC on or about January 4, 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services revoking the certification of Brenda J. Ogden as an Independent Support Coordinator, effective January 4, 1995. DONE AND ENTERED this 23rd day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1284 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Accepted, but not itself materially dispositive of the issues presented. 6-10. Accepted. Accepted, but immaterial. Accepted. Rejected, as contrary to the greater weight of the competent, credible testimony and evidence. Accepted, in a general sense, but not materially dispositive. These reasons were not the reasons for the Petitioner's violations of policies and her agreement. Rejected, as contrary to the weight of the evidence based upon the Hearing Officer's determinations of the candor and credibility of witnesses. Even though the Petitioner had some difficulties learning to use the relevant computer system, these were not shown to be the reasons for the improprieties in billing and record-keeping. Accepted. Accepted, except as to the date, but not materially dispositive. Accepted, but not materially dispositive. The referenced date should be November 22, 1994. Accepted. 20-21. Accepted, but not materially dispositive. Accepted, only in terms of the dates she made the written response referenced. It is not found to be a detailed plan of corrective action/support coordination, and this context of the proposed finding is rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law and not a proposed finding of fact and as legally incorrect. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not materially dispositive. Even if she never altered client records, that does not obviate the violations found. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Accepted, in part, but only as to the date the formal written notification of the overpayment was accorded the Petitioner. She had earlier been informed verbally of the problem. Even if she were terminated 28 days instead of 30 days after notification of the overpayment, the Petitioner never before then or since has made any effort of record in this proceeding to make reimbursement for the overpayments. The other reasons referenced and found above are adequate cause for termination, in any event. 31-32. Rejected, as immaterial. The other ISC's referenced in these proposed findings of fact were in different circumstances and differently situated in terms of overpayment/overbilling problems involved (for instance, repayments were made). 33. Rejected, as not in accord with the competent, credible evidence. The fact was that Mr. Sutton determined that there was insufficient evidence to go forward with prosecution in his opinion; however, the matter was referred to the Office of the State Attorney, who, in fact, elected not to institute prosecution for unknown, discretionary reasons. 34-35. Accepted, but immaterial. Respondent's Proposed Findings of Fact 1-28. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Anthony L. Bajoczky, Esquire Scott A. Snavely, Esquire BAJOCZKY & FOURNIER 125 North Franklin Boulevard Tallahassee, FL 32301 Tommy E. Roberts, Jr., Esquire Charles A. Finkel, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 252-A Tallahassee, FL 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of these overpayments.
Findings Of Fact Petitioner Petitioner is a family practice physician licensed to practice in Florida. His office is located in Carol City, Florida. The Provider Agreement During the period from July 11, 1994, through July 11, 1995 (hereinafter also referred to as the "audit period"), Petitioner was authorized to provide physician services to eligible Medicaid patients. Petitioner provided such services pursuant to a Non- Institutional Professional and Technical Medicaid Provider Agreement (Provider Agreement) he had entered into with the Department of Health and Rehabilitative Services, AHCA's predecessor. 3/ The Provider Agreement contained the following provisions, among others: The provider agrees to keep for 5 years complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program and agrees to furnish the State Agency and Medicaid Fraud Control Unit upon request such information regarding payments claimed for providing these services. Access to the pertinent patient records and facilities by authorized Medicaid representatives will be held confidential as provided under 42 CFR 431.305 and 306. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, Medicaid compensable and of a quality comparable to those furnished by the provider's peers, and the services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting a claim. The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. The provider in executing this agreement acknowledges that he understands that payment of Florida Medicaid claims is made from Federal and State funds, and that any falsification or concealment of a material fact, may be prosecuted under Federal and State laws. . . . 6. The Department agrees to notify the provider of any major changes in Federal or State rules and regulations relating to Medicaid. . . . 8. The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Handbook Provisions Among the "manuals of the Florida Medicaid Program" referenced in paragraph 8 of the provider agreement in effect during the audit period were the Medicaid Provider Reimbursement Handbook, HFCA-1500 (MPR Handbook) and the Medicaid Physician Provider Handbook (MPP Handbook). Copies of these "manuals" were provided to Petitioner. Accordingly, he should have been aware of their contents. MPR Handbook: "Medically Necessary" Defined The term "medically necessary" was defined in Appendix D of the MPR Handbook, in pertinent part, as follows: Medically Necessary or Medical Necessity Means that the medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; Be individualized specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; 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; and Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. . . . MPP Handbook: Chapter 10 Chapter 10 of the MPP Handbook addressed the subject of "provider participation." Section 10.9 of this chapter provided as follows Record Keeping You must retain physician records on services provided to each Medicaid recipient. You must also keep financial records. Keep the records for five (5) years from the date of service. Examples of the types of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and copies of sterilization and hysterectomy consents. Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. If time is a part of the procedure code description being billed, then duration of visit shown by begin time and end time must be included in the record. Authorized state and federal staff or their authorized representatives may audit your Medicaid records. You may convert your paper records to microfilm or microfiche. However, your microfilm or microfiche must be legible when printed and viewed. MPP Handbook: Chapter 11 Chapter 11 of the MPP Handbook addressed the subject of "covered services and limitations." Section 11.1 contained an "introduction," which read as follows: The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law. It also applies to all doctors of dental medicine or dental surgery if the services provided are services that if furnished by a physician, would be considered a physician's service. The services of this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of the services in this handbook must be done by or under the personal supervision of a physician, osteopath or oral and maxillofacial surgeon at any place of service. Personal supervision is defined as the physician being in the building when the services are rendered and signing and dating the medical record either on the date of service or within 24 hours. Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. This "introduction" was followed by a discussion of "HCPCS Codes and ICD-9-CM Codes": Procedure codes listed in Chapter 12 are HCPCS (Health Care Financing Administration Common Procedure Coding System) codes. These are based on the Physicians' Current Procedural Terminology, Fourth Edition. Determine which procedure describes the service rendered and enter that code on your claim form. HCPCS codes described as "unlisted" are used when there is no procedure among those listed that describes the service rendered. Physicians' Current Procedural Terminology, Fourth Edition, Copyright 1993 by the American Medical Association (CPT-4) is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. The Health Care Financing Administration Common Procedure Coding System (HCPCS) includes CPT-4 descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures and other materials contained in CPT-4 which are copyrighted by the American Medical Association. The Diagnosis Codes to be used are found in the International Classification of Diseases, 9th edition, Clinical Modifications (ICD-9-CM). A diagnosis code is required on all physician claims in field 24E. Use the most specific code available. Fourth and fifth digits are required when available. The American Medical Association, in cooperation with many other groups, replaced the old "visit" codes with new "Evaluation and Management" (E/M) service codes in the 1992 CPT. This is the result of the Physician Payment Reform which requires the standardization of policies and billing practices nationwide to ensure equitable payment for all services. The new E/M codes are a totally new concept for identifying services in comparison to the old visit codes. They are more detailed and specific to the amount of work involved The process involved in selecting "the [c]orrect E/M [c]ode" was then described: Terms Used to Select the Correct E/M Code The levels of E/M codes are defined by seven components: Extent of History There are four types of history which are recognized: -Problem Focused- chief complaint; brief history of present illness or problem. -Expanded Problem Focused- chief complaint; brief history of present illness; problem pertinent system review. -Detailed- chief complaint; extended history of present illness; extended system review; pertinent past, family and/or social history. -Comprehensive- chief complaint; extended history of present illness; complete system review; complete past, family and social history. Extent of Examination There are four types of examinations which are recognized: -Problem Focused- an examination that is limited to the affected body area or organ system. -Expanded Problem Focused- an examination of the affected body area or organ system and other symptomatic or related organ systems. -Detailed- an extended examination of the affected body area(s) and other symptomatic or related organ system(s). -Comprehensive- a complete single system specialty examination or a complete multi- system examination. Complexity of Medical Decision-Making Medical decision-making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by the following factors: -The number of possible diagnoses and/or the number of management options that must be considered. -The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed. -The risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. There are four types of medical decision- making which are recognized: Straightforward, Low complexity, Moderate complexity, and High complexity. To qualify for a given type of decision- making, two of the three factors previously outlined must be met or exceeded as shown in the following table: Type of decision making: Straightforward; Number of diagnosis or management options: minimal; Amount and/or complexity of data to be reviewed: minimal or none; Risk of complications and/or morbidity or mortality: minimal Type of decision making: Low complexity; Number of diagnosis or management options: limited; Amount and/or complexity of data to be reviewed: limited; Risk of complications and/or morbidity or mortality: low Type of decision making: Moderate complexity; Number of diagnosis or management options: multiple; Amount and/or complexity of data to be reviewed: moderate; Risk of complications and/or morbidity or mortality: moderate Type of decision making: High complexity; Number of diagnosis or management options: extensive; Amount and/or complexity of data to be reviewed: extensive; Risk of complications and/or morbidity or mortality: high Counseling is a discussion with a patient and/or family concerning one or more of the following areas: -Diagnostic results, impressions and/or recommended diagnostic studies; -Prognosis; -Risks and benefits of management (treatment) options; -Instructions for management (treatment) and/or follow-up; -Importance of compliance with chosen management (treatment) options; -Risk factor reduction; and -Patient and family education. Coordination of Care Coordination of care is coordination with other providers or agencies which is consistent with the nature of the problem(s) and the patient's and/or the family's needs. Nature of Presenting Problem A presenting problem is a disease, condition, illness, injury, symptom, sign, finding, complaint or other reason for encounter, with a diagnosis being established at the time of the encounter. There are five types of presenting problems: -Minimal- A problem that may not require the presence of a physician, but the service must be provided under the physician's personal supervision. -Self-limited or Minor- A problem that runs a definite and prescribed course, is transient in nature and not likely to permanently alter health status or has a good prognosis with management/compliance. -Low Severity- A problem where the risk of morbidity without treatment is low; there is little to no risk of mortality without treatment; full recovery without functional impairment is expected. -Moderate Severity- A problem where the risk of morbidity without treatment is moderate; there is a moderate risk of mortality without treatment; uncertain prognosis or increased probability of prolonged functional impairment. -High Severity- A problem where the risk of morbidity without treatment is high to extreme; there is moderate to high risk of mortality without treatment or high probability of severe, prolonged functional impairment. Time The inclusion of time in the old visit codes has been implicit in prior editions of CPT. Beginning in 1992, the inclusion of time as an explicit factor is done to assist physicians in selecting the most appropriate codes to report their services. However, the times indicated in each specific E/M code are average amounts of time a physician may spent with a patient. Thus, the actual content of the service should be used in determining the most appropriate code except in cases where the counseling and/or coordination of care dominates the patient encounter (more than 50%). The extent of counseling and/or coordination of care must be documented in the patient's records. Time is not a factor for emergency department levels of service because emergency department services are typically provided on a variable intensity basis, often involving multiple encounters over a period of time; therefore, making it difficult to provide accurate estimates of time spent with a particular patient. There are two types of time defined by CPT: "face-to-face" time for office and other outpatient visits and "unit/floor" time for hospital and other inpatient visits. This distinction is necessary because most of the work of typical office visits takes place during the face-to-face time with the patient, while most of the work of typical hospital visits takes place during the time spent on the patient's floor or unit. How to Select the Correct Evaluation and Management Code The following steps should be used to select the appropriate E/M code: Select the proper category (e.g., office, hospital, observation, consultation, etc.). Select the proper subcategory, if applicable (e.g., initial, subsequent, established patient, etc.). Select the code that best describes the level of E/M service within the category/subcategory as described below: Step 1: If more than 50% of the physician face-to-face time with the patient is spent on counseling/coordination of care, select the level based solely on the amount of time spent. Step 2. If time is not the controlling factor in selecting the level of E/M service, the following process should be used: Determine the extent of HISTORY obtained during the E/M service (i.e, problem focused, expanded problem focused, detailed or comprehensive). Determine the extent of the EXAMINATION performed during the E/M service (i.e., problem focused, expanded problem focused, detailed or comprehensive). Determine the complexity of the MEDICAL DECISION-MAKING associated with the E/M service (i.e., straightforward, low complexity, moderate complexity or high complexity). Step 3. Use the determinations made in Step 2 to select the level of E/M service performed. ALL three of the key components described in Step 2 must be met or exceeded when selecting from the following levels of E/M service. Code Description 992901-99205 Office, new patient . . . . If only two of the three key components described in Step 2 were performed (e.g., no history was performed for an established patient), then you must select from the following levels of E/M service: Code Description 99211-99215 Office, established patient . . . . The Physicians' Current Procedural Terminology At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or "CPT") referred to in the MPP Handbook contained the following codes and code descriptions for "E/M" office services: 4/ New Patient 99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: -a problem focused history; -a problem focused examination; and -straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: -an expanded problem focused history; -an expanded problem focused examination; and -straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: -a detailed history; -a detailed examination; and -medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. 99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: -a comprehensive history; -a comprehensive examination; and -medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: -a comprehensive history; -a comprehensive examination; and -medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may or may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: -a problem focused history; -a problem focused examination; -straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: -an expanded problem focused history; -an expanded problem focused examination; -medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: -a detailed history; -a detailed examination; -medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: -a comprehensive history; -a comprehensive examination; -medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. It is a rarity for a family practice physician to provide office services at the 99205 or 99215 "E/M" code level. Office services at the 99203 and 99213 "E/M" code levels are the most common types of office services that family practice physicians provide. The Audit and Aftermath Commencing in 1995, AHCA conducted an audit of Medicaid claims submitted by Petitioner for services rendered from July 11, 1994, through July 11, 1995. Petitioner had submitted 9,235 Medicaid claims for services rendered during the audit period to 826 patients, for which he had received payments totaling $294,554.57. From the 826 Medicaid patients to whom Petitioner had provided services during the audit period, AHCA randomly selected a "cluster sample" of 48, and asked Petitioner to produce the medical records he had on file for these 48 patients. According to the expert testimony of AHCA's statistician, Robert Pierce, which the undersigned has credited, a sample size of 30 or more is "uniformly and universally considered to be adequate for a sample of this type" (that is, a "cluster sample"). Petitioner had submitted a total of 577 claims for services rendered to the 48 patients in the "cluster sample" during the audit period. Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's request. Based upon a preliminary review conducted by a Registered Nurse consultant (Stella Steinberg, R.N.) and physician consultant (John Sullenberger, M.D.), AHCA determined that Petitioner had been overpaid a total $183,283.94 for the Medicaid claims he had submitted for services rendered during the audit period. After having been advised of this preliminary determination, Petitioner sent additional documentation to AHCA. The additional documentation was reviewed by Dr. Sullenberger. Following Dr. Sullengerger's review, the overpayment was recalculated and determined to be $179,782.73. By letter dated May 25, 1999, Petitioner was notified of this recalculation and advised of his right to request an administrative hearing on the matter. Petitioner requested such a hearing. Thereafter, AHCA retained the services of Timothy Walker, M.D., a Board-certified family practice physician who is a faculty member of Tallahassee Memorial Hospital's Family Practice Residency Program. At AHCA's request, Dr. Walker reviewed the records that Petitioner had provided regarding the 48 patients in the "cluster sample" to determine whether there was documentation to support the Medicaid claims relating to these patients that Petitioner had submitted for services rendered during the audit period. Dr. Walker's review revealed "upcoding" on claims submitted for office services (that is, billing for a higher level of service than the patients' records revealed had actually been provided), 5/ billing for unnecessary medical services (in the form of aerosol treatments), and no documentation whatsoever relating to other claims. 6/ Based upon these findings of Dr. Walker, which the undersigned has accepted as accurate in the absence of any evidence to the contrary, AHCA determined, correctly, that Petitioner had been overpaid a total of $11,740.64, or $20.34772903 per claim, for the 577 claims he had submitted for services rendered during the audit period to the 48 patients in the "cluster sample." Using a generally accepted, appropriate, and valid statistical formula that "appears in many, many elementary statistical text books," AHCA extended these results to the total "population" of 9,235 Medicaid claims that Petitioner had submitted for services rendered during the audit period, and it correctly calculated that Petitioner had been overpaid a total of $175,992.84. 7/ Simple Mistake or Fraud? There has been no allegation made, nor proof submitted, that any of the overbillings referenced above were the product of anything other than simple mistake or inadvertence on Petitioner's part.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $175,992.84 in Medicaid overpayments for services rendered to his Medicaid patients from July 11, 1994, through July 11, 1995, and requiring him to repay this amount to the agency. DONE AND ENTERED this 23rd day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 23rd day of August, 2001.
The Issue Whether the Petitioner is required to repay $2,269.00 to the Respondent?
Findings Of Fact The Petitioner entered into a "Noninstitutional Professional and Technical Medicaid Provider Agreement" (hereinafter referred to as the "Medicaid Provider Agreement") with the Respondent. Pursuant to the Medicaid Provider Agreement, the Petitioner agreed to participate in the Florida Medicaid Program. Pursuant to paragraph 2 of the Medicaid Provider Agreement, the Petitioner agreed to the following: The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request. The Petitioner also agreed in the Medicaid Provider Agreement to submit claims under the Medicaid Provider Agreement in accordance with the Florida Medicaid Program and applicable "Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations." Paragraphs 3 and 7 of the Medicaid Provider Agreement. Medicaid is essentially a mechanism by which the federal government provides funds for the payment of a part of certain medical service costs to the State of Florida. It is a federal grant under Title XIX of the Social Security Act. In Florida, community mental health services provided to persons eligible for Medicaid coverage can be paid for under the Medicaid program. Generally, the federal government provides 56 percent of the costs of Medicaid services and the State is responsible for 44 percent. As eligible services are rendered federal Medicaid funds are received and deposited in the Medical Care Trust Fund. In order for services to constitute "eligible services" they must have been rendered in compliance with Chapter 10C-7, Florida Administrative Code. If services are not "eligible services" (they do not comply with Chapter 10C-7), the State is not entitled to receive federal Medicaid funds. In order to insure that providers of Medicaid services are providing "eligible services" the Respondent conducts compliance audits. The purpose of compliance audits is to determine if federal Medicaid funds have been properly received. On June 27, 1985, the Respondent's Medicaid Program auditors conducted a compliance audit of the records of the Petitioner pertaining to Medicaid clients of the Petitioner's Bristol office. As a result of the June 27, 1985 audit, the Respondent determined that the Petitioner had improperly submitted claims for Medicaid care and that such claims had been improperly paid by the Respondent. The parties stipulated that the Petitioner was paid $2,269.00 for claims for which there was insufficient documentation to warrant payment under Chapter 10C-7, Florida Administrative Code. Petitioner claimed $2,269.00 as an amount due for Medicaid "eligible services" and was so paid by the Respondent. In fact, however, the services were not Medicaid "eligible services." The State was not entitled to federal Medicaid funds for these services. The Petitioner improperly received the amount in controversy because the Petitioner did not comply with Chapter 10C-7, Florida Administrative Code, as it was required to do pursuant to the Medicaid Provider Agreement. On May 21, 1985, the Petitioner executed an "Alcohol, Drug Abuse and Mental Health Services Contract Between State of Florida Department of Health and Rehabilitative Services and Apalachee Community Mental Health Services, Inc." (hereinafter referred to as the "Provider Contract"). The Provider Contract was executed by the Respondent on June 11, 1985. Pursuant to the Provider Contract, the Petitioner agreed to provide alcohol, drug abuse and mental health services in eight designated counties. In paragraph IC4 of the Provider Contract, the Petitioner was required to comply with Chapters 394, 396 and 397, Florida Statutes, and Chapters 10E-13 and 10E-14, Florida Administrative Code, "as appropriate." 15. Paragraph IC5 of the Provider Contract also required the Petitioner to "comply with all other applicable state standards, provided they are specified in Florida Statutes or Administrative Rules established by the department or made known in writing to the contractor." Paragraph IE1 and 2 of the Provider Contract required that the Petitioner "participate in the Community Mental Health/Alcohol Services Program as defined in Section 10C-7.525, F.A.C." and that the Petitioner "pursue and submit vouchers on all Medicaid eligible clients for Medicaid eligible services." [Emphasis added]. Paragraph IG1 of the Provider Contract required the Petitioner to provide an annual audit report by an independent certified public accountant to the Respondent. Paragraph IH of the Provider Contract required the Petitioner to permit monitoring for compliance with state and federal rules and regulations. Paragraph IIA1 of the Provider Contract provided that the Respondent will pay up to 75 percent of approved costs as determined under Chapters 394 and 397, Florida Statutes, and Chapter 10E-14, Florida Administrative Code, in an amount not to exceed $4,096,175.00. Paragraph IO of the Provider Contract required that the Petitioner secure "local match." Pursuant to the Provider Contract the Petitioner is entitled to receive payment for eligible expenditures" up to the amount of the Provider Contract and subject to the availability of funds. Services to be paid for pursuant to the Provider Contract include Medicaid eligible services and non-Medicaid services. Even though the Petitioner did not provide "eligible services" the amount in controversy may have been an "eligible expenditure" for which it may receive payment at a later date. Whether the Petitioner is entitled to payment of the amount in controversy will be determined at a later date as a result of the financial audit required by paragraph IGI of the Provider Agreement and will depend on the availability of funds and whether the Petitioner has already received the maximum amount specified in the Provider Contract. Whether the Petitioner is entitled to ultimate payment of the amount in controversy at a later date is governed by Chapters 394 and 397, Florida Statutes, and Chapters 10E-13 and 10E-14, Florida Administrative Code. A dispute arose between certain medical health providers and the Respondent over whether Medicaid funds are considered "state funds" for which local match is required pursuant to Chapter 394, Florida Statutes. The Department took the position that Medicaid funds are considered state funds and thus require local match and are subject to audit pursuant to Chapter 10E-13, Florida Administrative Code. When the dispute arose, the Respondent developed an "Issue Paper" (Petitioner's exhibit 2). The Respondent adopted one of the alternatives recommended in the Issue Paper to treat Medicaid funds as state funds for which local match is required. The Respondent also took the position that Medicaid eligible services were subject to the provisions of Chapter 394, Florida Statutes, and Chapter 10E, Florida Administrative Code. The Respondent's decision to treat Medicaid funds as state funds subject to local match was challenged by the Florida Council for Community Mental Health, Inc. Florida Council for Community Mental Health, Inc. v. Department of Health and Rehabilitative Services, 8 FALR 756 (Feb. 6, 1986). The issue in that case was whether the position of the Respondent taken in the Issue Paper was a rule.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner repay the Respondent $2,269.00 for services improperly billed. DONE and ENTERED this 17th day of March, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1500 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1381 The parties have submitted proposed findings of fact. It has been generally noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact: Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1 RO 15-16. RO 17-19. The first and second sentences incorrectly refer to Paragraph I(C)(6) of the Medicaid Provider Agreement. The correct paragraphs are 1(0)4 (first sentence) and 1(0)5 (second sentence). The following portion of the second sentence is not supported by the weight of the evidence: "or incorporated as part of the contract. The following portion of the third sentence is not supported by the weight of the evidence: "and HRS Manual 230-31. The first sentence is accepted in RO 28. The rest of this proposed finding of fact is generally accepted in RO 28. 4-5 These proposed findings of fact are too broad and are not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. Too broad and not supported by the weight of the evidence. See RO 28. Too broad and not supported by the weight of the evidence. See RO 30. 9-17 These proposed findings of fact are irrelevant. Additionally, the third and fourth sentences of paragraph 16 are not supported by the weight of the evidence. RO 6. RO 9. The last sentence is irrelevant. Not supported by the weight of the evidence. Irrelevant. Respondent's Proposed Findings of Fact: 1 RO 1-3. 2 RO 10. 3 RO 11. 4 RO 12-13 5 Hereby accepted. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Theodore E. Mack, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32399-0700 Ronald W. Brooks, Esquire Brooks, LeBoeuf & LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301
