The Issue The issues are whether, contrary to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070, Respondent has committed violations in core- competency training for nine employees (Eula Brown, Natasia Bernard, Lorine Smiley-Lewin, Taneish Mayers, Irene Thompson, Therese Etienne, Adrae McCalla, Marline Ford, and Cynthia Phinn), "medication administration/validation training" for seven employees (Ms. Bernard, Ms. Smiley-Lewin, Ms. Mayers, Ms. Thompson, Ms. Etienne, Ms. Ford, and Ms. Phinn), service authorizations for two consumers (J. B. and L. H.), and Level 2 background screening and HIPAA training for one employee (Ms. Ford). If Respondent is guilty of any of these violations, an additional issue is the fine that should be imposed.
Findings Of Fact At all material times, Respondent owned half of the shares of Glory House USA, Inc., which, for ten years has operated one or more group homes for the developmentally disabled. At all material times, Respondent has been a Medicaid provider of services under the Florida developmental disabilities waiver program. For 2011, Respondent received $790,367.16 in Medicaid reimbursements for services provided to Medicaid consumers. At all relevant times, Respondent has been subject to a Medicaid Provider Agreement. In this agreement, Respondent agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. In particular, Respondent agreed to comply with Petitioner's Medicaid handbooks. On September 29, 2011, Petitioner's inspectors conducted an unannounced inspection of Glory House. During the course of the inspection, Petitioner's inspectors spoke to Respondent's home manager, who answered the inspectors' questions, supplied all of the requested documents that were readily available, and took the inspectors on a tour of the facility. The Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook issued by Petitioner, effective May 2010 (Medicaid Handbook) Appendix A identifies the assurances required by Petitioner and the Agency for Persons with Disabilities (APD) of providers of services under the Developmental Disabilities Home and Community-Based Services Waiver. Appendix A Section 2.1 imposes specific training requirements on providers and their employees. Appendix A Section 2.1.G imposes the requirement of core competency training upon "[a]ll direct service providers . . . within 90 days of employment." As of the date of the inspection, seven employees, who had been employed by Respondent's corporation for over 90 days, had not completed direct-care core competency training: Ms. Brown, Ms. Bernard, Ms. Smiley-Levin, Ms. Mayers, Ms. Thompson, Ms. Etienne, and Ms. Phinn. Petitioner has thus proved seven of the nine alleged violations of this training requirement. Respondent's corporation employed Ms. Ford in July 2011, so she was still in her first 90 days of employment at the time of the inspection and was not yet required to have completed her core competency training. Petitioner seems to have relied on an earlier date shown in Petitioner Exhibit 3, but this date purports to show the date of the employee's application, not the date of hire. The only evidence of Ms. Ford's hire date is the testimony of Respondent's daughter, who is the assistant administrator, and she places the date of hire in July 2011. Ms. McCalla had completed the required training prior to the site inspection. Certificates documenting this training show that Ms. McCalla completed the APD Core Competency Training I on September 14, 2006, and APD Core Competency Training II on September 19, 2006. For the two reasons noted in the Conclusions of Law, it is irrelevant that Respondent may not have provided the certificate to the inspectors at the time of the inspection, so the Administrative Law Judge declines to make a finding of fact on whether Respondent provided these certificates to Petitioner at the time of the inspection or within the 15 additional days allowed by the inspector for the provision of documents, as noted below. On the other hand, Respondent's argument that core competency training was only required of employees providing unsupervised direct care to consumers is unsupported by the above-cited provision of the Medicaid Handbook. The allegation as to "medication administration/validation training" is a composite allegation. As noted in the Conclusions of Law, certain employees of providers must undergo medication administration training and validation; these are separate requirements. Also, there is no requirement of "validation training," as suggested by Petitioner's allegation. As of the date of the inspection, six of the seven named employees had completed medication administration training. Ms. Ford was the only employee who had not completed medication administration training, but she did not, at the time, administer medication to consumers or supervise their self-administration of medication. As explained in the Conclusions of Law, the Administrative Law Judge has rejected Petitioner's claim that Respondent had to affirmatively designate those employees who were not allowed to administer medications or supervise the self-administration of medications, so the Administrative Law Judge declines to make a finding of fact on whether Respondent so designated any such employees. Petitioner has thus failed to prove any of the seven alleged violations of this training requirement. As of the date of the inspection, three of the seven named employees had current validations for medication administration: Ms. Mayers, Ms. Etienne, and Ms. Phinn. (Like Ms. Ford, though, Ms. Etienne did not, at the time, administer medication to consumers or supervise their self-administration of medication, so Petitioner's proof as to Ms. Etienne fails on two grounds.) Because, as noted above, Ms. Ford was not designated to administered medications or supervise the self- administration of medications, Petitioner has thus proved three of the seven alleged violations of the validation requirement: Ms. Bernard, Ms. Smiley-Lewin, and Ms. Thompson lacked the required validations. As of the date of the inspection, one employee--the peripatetic Ms. Ford--had not completed HIPAA training. However, the record fails to establish the specific details of this requirement. In its proposed recommended order, Petitioner has relied on two documents: the Non-Institutional Medicaid Provider Agreement (Petitioner Exhibit 1, p. 16), which states only: "The provider agrees to comply with local, state, and federal laws, as well as rules, regulations, and statement of policy applicable to the Medicaid program, including the Medicaid . . . Handbooks . . . "; and the Medicaid Handbook, which states: Florida Medicaid has implemented all of the requirements contained in . . . HIPAA. [A]ll Medicaid providers, including their staff . . ., must comply with HIPAA privacy requirements. Providers who meet the definition of a covered entity according to HIPAA must comply with HIPAA Electronic Data Interchange (EDI) requirements. . . . For the reason noted in the Conclusions of Law, Petitioner has failed to prove its alleged HIPAA-training violation. As of the date of the inspection, Ms. Ford had submitted unspecified documentation sufficient to allow the Department of Children and Family Services (DCF) to issue a letter, dated June 29, 2011, documenting "the final results of a criminal history records check received by [DCF], required by Florida Statute for the below stated program," which is noted as an "APD Foster/Group Home." The letter further states: "[DCF] received the complete criminal history records for [Ms. Ford]. Nothing was found in the Department's review that disqualifies the individual from serving in the program . . . for which this screening was requested and is required by law." The letter adds that "[t]his screening remains valid for five years providing the applicant does not have a 90 day break in service " The Medicaid Handbook, at page 55, states: Direct service provider applicants must comply with the requirements of a level 2 screening in accordance with section 435.04, F.S. Compliance with this requirement may be accomplished through one of two ways: ?Background screening pursuant to s. 393.0655, F.S., or Applicants must submit a fingerprinting card, an affidavit of good moral character, a caretaker information sheet, and a check . . . to DCF for processing. . . . The results of this screening will be submitted with the Medicaid enrollment application. ?Background screenings pursuant to section 409.907, F.S. Applicants must submit a fingerprint card with the Medicaid Enrollment Application and a check made payable to the Medicaid fiscal agent for processing; or, if available, the applicant may submit the screening through an approved live scan location. Screening is performed at the time of enrollment and every five years thereafter. It is the responsibility of the applicant or provider to ensure this request for screening or rescreening is submitted for processing in a timely manner. Assuming that the cited provisions impose any duty upon Respondent beside ensuring that the employee or prospective employee timely submits her request for screening or rescreening, it is difficult to understand how Ms. Ford's screening document fails to satisfy the second alternative in the first bulleted paragraph. It certainly appears that Ms. Ford submitted the required items to DCF for processing, and DCF found nothing to prevent her employment at Glory House. Further confirming its responsiveness to the screening requirement in the Medicaid Handbook, the DCF letter even notes that it is good for five years. Petitioner has thus failed to prove its alleged screening violation. Medicaid Handbook Appendix A Section 3.6.E states that a provider may "[b]ill for only those services for which an approved service authorization has been received. Copies of service authorizations shall be kept on file by the provider and shall be made available to APD, [Petitioner], or their authorized representatives for monitoring purposes." As of the date of the inspection, L. H. and J. B. had current service authorizations. The terms of these authorizations were July 1, 2011, through June 30, 2012. Petitioner has thus failed to prove the two service authorization violations. By letter hand delivered to the home manager on September 29, 2011, Petitioner provided Respondent with an additional 15 days to provide, among other things, all employee records, including level 2 background screens. The letter is not free from ambiguity, largely because it is a form for use in a Medicaid-overpayment case that, in this case, covers a list of items that Respondent needed to provide Petitioner following the inspection. In any event, the letter cannot be interpreted as extending the time for compliance with the underlying requirements. In other words, if an employee obtained a medical administration validation on October 5, 2011, it would not obviate the violation. As the Administrative Law Judge noted at the hearing, such an interpretation of the letter would enable providers to ignore many Medicaid program requirements until Petitioner conducted an inspection and then avoid any sanctions by belatedly coming into compliance--after the inspection uncovered violations. There is no indication of prior offenses by Respondent under the Medicaid program. Thus, as defined in the rule discussed in the Conclusions of Law, the ten proved violations all are a first offense for the purpose of identifying the proper fine per violation.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of seven violations of the core competency training requirement and three violations of the medication administration validation requirement and imposing a fine of $10,000. DONE AND ENTERED this 12th day of July, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2012. COPIES FURNISHED: Jeffries H. Duvall, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 jeffries.duvall@ahca.myflorida.com Randy A. Fleischer, Esquire Randy A. Fleischer, P.A. 8258 State Road 84 Davie, Florida 33324 randy@igc.org Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308
