Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1, The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deny (Exhibit 1). The parties entered into the attached Settlement Agreement (Exhibit 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this TA day of Leggs? 2010.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this /4* day of Alagus C_, 2010. Copies furnished to: Richard Shoop, Agency Clerk ~*~’ Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 . Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Anne Menard, Manager Home Care Unit Agency for Health Care Administration (Interoffice Mail) Lourdes A. Naranjo, Esq. Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Manuel R. Lopez, Esq. Counsel for Petitioner 770 Ponce de Leon Boulevard Penthouse Suite Coral Gables, Florida 33134 (U.S. Mail) Patricia M. Hart Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 (U.S. Mail)
Findings Of Fact The Petitioner, Sunrise, a Community for the Retarded, Inc. (Sunrise), owns and operates Corry Group Home No. 3 (Corry), a 12-bed group home for the retarded in Miami, Florida. Corry is a licensed developmental residential facility which is certified as a Medicaid provider for Intermediate Care Facility/Mentally Retarded (ICF/MR) services to eligible Medicaid recipients. The Department of Health and Rehabilitative Services (DHRS) administers Florida's Medical Assistance Program Medicaid) which is funded jointly by the federal and state governments. The federal contribution to Medicaid's funding is approximately 56 percent and the state contributes approximately 44 percent. The Medicaid program is subject both to state and federal laws, rules and regulations. DHRS reimburses Sunrise for Medicaid services provided under the Florida Title XIX ICF/MR Reimbursement Plan (the Plan) which operates prospectively. A provider receives a rate for Medicaid reimbursement which is based on historical costs that are inflated forward through the reimbursement period. This differs from retrospective reimbursement which is based on payment for actual expenses. Under the Plan, a target rate is set for new providers just entering the Medicaid program. This target rate uses a beginning cost reporting period as a base, and inflates the target rate forward to establish a limitation on the rate calculated from subsequent cost reporting periods. The target rate is intended to act as a constraint on increases in the provider's costs in future periods. A target rate was established for Corry in 1983. Under the Plan, it is possible for a provider to incur costs greater than the amount of Medicaid reimbursement. The Plan places the burden of operating within the budgetary constraints on the provider. Inefficient management can result in a loss which will not be compensated for by Medicaid. As a licensed and Medicaid-certified facility, Corry is reviewed on an irregular basis by the DHRS Office of Licensure and Certification for compliance with licensure requirements, as well as Medicaid certification requirements. In 1985, the federal Health Care Finance Administration (HCFA) initiated a "look behind" survey to review Corry's compliance with federal rules and regulations. As a result of this survey, HCFA determined that Corry had fire safety deficiencies, and ordered that it be decertified from participation in Medicaid, effective October 15, 1985. The DHRS Office of Licensure and Certification did not agree with the HCFA determination, and informed HCFA that it would not revoke Sunrise's license for the Corry group home. No action was taken by DHRS to revoke the license of the Corry facility as a developmental residential facility, and this license was later renewed without any requirement for reapplication. Because of the HCFA decertification, the DHRS Medicaid Program was required to terminate Medicaid payments to the Corry facility on October 15, 1985. Since the facility was caring for clients of the DHRS Developmental Services Program, DHRS took steps to license Corry as a long-term care facility so that DHRS would have a contract under which it could make payments from the state's general funds. The amount paid to Sunrise under the contract was the same 44 percent share that DHRS would have been reimbursing under Medicaid. Sunrise covered the remaining amount through private donations. During the period of decertification, while Sunrise was challenging the federal government's action, the Corry facility continued to serve clients placed there by the DHRS Developmental Services Program. It was also required to be in compliance with its license as a developmental residential facility. Also in this period of decertification, there was a shift in the client population of Sunrise, with clients functioning at higher levels being moved from Corry to other Sunrise facilities, and clients who functioned at a lower level and who needed more services being moved into the Corry facility. These moves appear to have resulted from a business decision by the Sunrise management, because there was no regulatory requirement that the moves be made. With assistance from DHRS, Sunrise installed a fire sprinkler system in the Corry facility to alleviate the fire safety problems. Also, Sunrise prevailed in its challenge to HCFA's decertification order, and entered into a settlement with HCFA by which the Corry facility would be treated as if it had never been decertified. Corry's recertification was effective as of January 31, 1986. DHRS assisted Sunrise to obtain recertification of the Corry facility under the Medicaid Program. At the request of HCFA, DHRS calculated the Medicaid reimbursement that would have been made to Sunrise if the Corry facility had not been decertified between October 15, 1985, and January 31, 1986. This amount was only an estimate since Sunrise had not been billing Medicaid during the period of decertification. DHRS based its estimate on the Corry facility's Medicaid rate for the decertification period multiplied by the number of Medicaid client days. In making this calculation, DHRS took into account an interim rate increase which had been allowed for the period, based on increased workers compensation benefits. This estimate was transmitted to HCFA which authorized reimbursement. The authorized amount was reduced by the amount of state funds previously paid Sunrise under the long-term care facility contract with DHRS, and Sunrise is currently being reimbursed through the Medicaid Program based upon claims submitted. The estimated amount will be adjusted to reflect the actual amount when all of the claims have been calculated, and HCFA will pay its share of that amount. If the Corry facility had not been retroactively certified during the period of October 15, 1985, through January 31, 1986, these payments could not have been made. When the Corry facility was recertified as a Medicaid provider it retained the same Medicaid provider number that it previously had operated under. Although the Corry facility's provider agreement issued on February 1, 1986, indicated that it was a "new" facility with an "initial" agreement, these terms are standard on forms utilized by DHRS for facilities reentering the program, as well as for new providers. The terminology had no effect on the Medicaid determination of whether or not the Corry facility was a new provider under the Plan. In September of 1986, Sunrise requested a complete interim rate for its Corry facility, based on its contention that Corry was a new provider under the Plan. This would enable the Corry facility to replace its 1983 target rate with a higher 1986 target rate. DHRS rejected this request for three reasons: Corry's license was never revoked. Corry received its state share of Medicaid payments through general revenue during the period of decertification. Corry is being retroactively reimbursed for the federal share of Medicaid payments for the period of decertification. As a part of its claim that the Corry facility should be considered a new provider, Sunrise contends that Corry has no cost history for the period of decertification. However, all of the elements required to compile a cost report during the period of decertification were in existence, and could be provided by Sunrise. During the decertification period, the Corry facility's services to Medicaid recipients produced Medicaid eligible costs. Therefore the Corry facility had a Medicaid cost history for establishing a prospective rate, as contemplated by the Plan. The changes in the patient population at the Corry facility had no effect on whether or not Corry had a Medicaid cost history because such changes can occur in the routine operation of any ICF/MR facility. Corry was not a new provider. DHRS has recognized that Sunrise is eligible for a component interim rate under the Plan (as opposed to a complete interim rate) for the costs of installing the fire sprinkler system to meet federal requirements. Yet this would not provide a new target rate for the Corry facility.
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 The issue is whether Petitioner, Utopia Home Care, Inc. (Utopia or Petitioner), is entitled to payment of $38,432.71 for the services it provided to Medicaid recipients during the period of January 1, 2000, through December 31, 2000.
Findings Of Fact At all times relevant to this proceeding, Utopia was an authorized Medicaid provider in the State of Florida. Pursuant to a valid Medicaid provider agreement, Utopia was authorized to provide home and community-based services to Medicaid recipients. The Agency is charged with the administration and oversight of the Medicaid Program and funds throughout the State of Florida. One of the Agency's responsibilities is to monitor the provision of Medicaid services and make payments to providers for services which have been appropriately provided and for which claims have been correctly processed. During the period of January 1, 2000, through December 31, 2000 (the audit period), Utopia rendered services to Medicaid recipients who receive home care services through the Medicaid Program. The cost of these services, for which Utopia has not received payment, is $38,432.71. There is no dispute that these services were authorized and provided by Utopia. Robert Fritz is vice president of Utopia and works in Utopia's St. Petersburg, Florida, office. In or about February 2002, while Mr. Fritz was participating in an accounts receivable project, he discovered that Utopia had not been paid for some of the services it had provided to Medicaid recipients during the audit period. Mr. Fritz contacted the Agency soon after he discovered that Utopia had not received payment for the services it rendered during the audit period. Over a period of several months, Utopia, through Mr. Fritz, provided the Agency with documentation that the services were authorized and had been invoiced at or near the time the services were provided. Additionally, at the request of the Agency, Utopia completed numerous 081 Forms, Request for Payment Forms for the Florida Medicaid Program, to establish a baseline as to what claims were unpaid. Utopia completed the 081 Forms for the services which were provided during the audit period and for which it had not received payment in or about February 2002. In addition to the completed 081 Forms, dated February 2002, Utopia also provided to the Agency documentation generated from Utopia's computer system in Florida. The documents, created by the computer system on a weekly basis, included payroll checks for employees and invoices for services rendered. As part of Utopia's contractual requirements with the lead agency, which oversees the Medicaid Program at the local level, a monthly Medicaid Expenditure Tracking Report (Expenditure Tracking Report) is created by Utopia's St. Petersburg, Florida, office. The Expenditure Tracking Report lists anticipated expenditures from the Medicaid system to Utopia for services rendered in a particular month. Many of these documents were provided to the Agency in seeking to establish that the services had been provided during the audit period and to obtain payment for the services. The documents created by Utopia's computer system and discussed in paragraph 6 above were created at or near the time services were rendered. Due to the documentation provided by Utopia, the Agency stipulated that Utopia provided authorized services to Medicaid recipients and that the cost of these services was $38,432.71. Nonetheless, the Agency has refused to pay Utopia for the services because the claims were not filed in accordance with Medicaid procedures, as established in the Medicaid Provider Reimbursement Handbook, Non-Institutional 081 (Reimbursement Handbook). Based on the Agency's review of its records, it determined that Utopia had not filed the claims within 12 months of the services being rendered. The procedures for filing claims for Medicaid payments are outlined in the Reimbursement Handbook, which is referenced and incorporated by reference in Florida Administrative Code Rule 59G-8.200(6). Also, for purposes of this case, the Reimbursement Handbook sets forth the applicable Medicaid requirements for processing claims. The Reimbursement Handbook, pages 6-2 and 6-3, provides in relevant part the following: Medicaid providers should submit claims timely so that any problems with a claim can be corrected and the claim resubmitted before the filing deadline. * * * A clean claim for services rendered must be received by the agency or its fiscal agent no later than 12 months from the date of service. * * * The date electronically coded on the provider's electronic transmission by the Medicaid fiscal agent is the recorded date of receipt for an electronic claim. At all times relevant to this proceeding, Consultec was the company responsible for receiving claims from and paying those claims to Medicaid providers in the State of Florida. The Reimbursement Handbook indicates that the processing time for claims "under normal circumstances" is within 10 to 30 days after the claim is filed. The Reimbursement Handbook also provides that a "remittance voucher" is mailed each week if Consultec processed any claims or put any claims in "Suspend" status. With regard to the remittance voucher, the Reimbursement Handbook, page 8-4, states in relevant part the following: The remittance voucher plays an important role in communications between the provider and Medicaid. It tells what happened to the claims submitted for payment--whether they were paid, suspended, or denied. It provides a record of transactions and assists the provider in resolving errors so that denied claims can be resubmitted. The provider must reconcile the remittance voucher with the claim in order to determine if correct payment was received. Utopia filed all its claims electronically. Therefore, to determine whether Utopia was entitled to payment for services rendered during the audit period, the Agency searched its data warehouse. The data warehouse allows the Agency to review claims that have been electronically filed and the status of those claims. Based on the Agency's review, which compared claims filed by Utopia in February 2002 for services rendered during the audit period, the Agency found that 36 claims had been submitted by Utopia and paid and 108 claims had not been paid. With regard to the 108 claims that were not paid, the Agency found no evidence that the claims had ever been filed. Utopia's St. Petersburg, Florida, office provided the services in question. Staff members in that office generate and enter data into the computer system that creates the documents described in paragraph 6 above and provide billing information to the local lead agency. Utopia provides this information to the local lead agency, Neighborly Senior Services (Neighborly), pursuant to a contractual arrangement which authorizes Utopia to provide services to Medicaid recipients. Utopia's staff at the St. Petersburg, Florida, office prepares and compiles billing information regarding the services it has provided and electronically transmits the information to Utopia's corporate office in Kingsburg, New York. The practice of Utopia is that the corporate office in New York then finalizes the billing information and transmits the claims to the entity designated by the Agency to process and pay claims. At all times relevant to this proceeding, that entity was Consultec. Once the St. Petersburg, Florida, office transmits the billing information to the corporate headquarters in New York, it has no further responsibility or control over the billing information sent to Medicaid. Utopia's St. Petersburg, Florida, office also has no responsibility to reconcile the services actually billed to Medicaid by the corporate office with the services provided in Florida. At this proceeding, no evidence was presented to establish that Utopia's corporate office in New York ever filed claims for the services during the audit period for which no payment has been made. Likewise, Utopia never provided the Agency with documentation or evidence that claims for the services provided during the audit period were ever filed within 12 months of the services being provided. Similarly, no such evidence was ever produced at this proceeding. The Reimbursement Handbook provides for exceptions to the 12-month time limit if the claim meets one or more of the following conditions: (1) original payment voided, (2) court or hearing decision, (3) delay in recipient eligibility determination, (4) agency delay in updating eligibility file, (5) court ordered or statutory action, and (6) system error on a claim that was originally filed within 12 months from the date of service. Upon consideration of the applicable provisions of the Reimbursement Handbook, the Agency properly determined that Utopia did not file the claims within 12 months from the date of the service and that none of the conditions were present which warranted granting an exception.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency enter a final order finding that the disputed claims were not filed within the required 12-month period and denying reimbursement of those services. DONE AND ENTERED this 29th day of December, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of December, 2003. COPIES FURNISHED: Jeffries H. Duvall, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Robert C. Fritz Utopia Home Care, Inc. 215 Second Avenue, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issues are whether Petitioner has overpaid Respondent for medical services for which he has obtained reimbursement under the Medicaid program and, if so, by how much.
Findings Of Fact Respondent is a licensed physician engaged in the practice of medicine in Florida. From January through November 1997, Respondent worked a couple of hours each morning at the Summit Clinic in Miami before seeing patients at his own office. At the Summit Clinic, Respondent administered intravenous immunoglobulin (IVIG) to adult Medicaid patients who were infected with human immunodeficiency virus (HIV). Petitioner paid the Summit Clinic, which was using Respondent's Medicaid provider number, for these and other medical services. Petitioner now claims that these IVIG services were not medically necessary, and, pursuant to its "pay-and-chase" policy, Petitioner seeks repayment from Respondent. In general, the administration of IVIG transfers antibodies contained in globulin to protect the recipient from various infectious microorganisms. The United States Food and Drug Administration (FDA) has approved the marketing of IVIG for the treatment of persons with certain clinical conditions, such as idiopathic thrombocytopenic purpura, Kawasaki disease, and pediatric HIV infection. However, the FDA has not approved the marketing of IVIG for the treatment of adult HIV infection. The use of a drug to treat conditions for which the FDA has not issued its approval is known as an off-label use. Some off-label uses are medically effective and prevalent, but remain unapproved by the FDA because the drug manufacturer cannot feasibly conduct expensive clinical trials generally necessary to obtain FDA marketing approval. Despite the absence of such clinical trials, not all off-label uses are experimental. In the 20 years that IVIG has been commercially available in the United States, medical researchers and practitioners have uncovered evidence in support of important off-label uses of IVIG. For instance, a common and effective off-label use of IVIG is for the treatment of Guillain-Barré syndrome. According to the University HealthSystem Consortium, the FDA estimates that 50-70 percent of IVIG use is off-label, but as much as half of the off-label use finds little, if any, support by clinical studies. This case raises the question of the medical necessity of the off-label use of IVIG for the treatment of HIV-infected adults. Unlike adult-onset HIV infections, pediatric HIV infections result in systemic immune deficiencies because the children's immune systems never develop normally. In HIV- infected children, IVIG relieves the effects of these systemic immune deficiencies by preventing serious bacterial infections. For these reasons, the FDA has approved the use of IVIG for HIV- infected children. By letter dated July 31, 2001, Petitioner advised Respondent that it had reviewed various Medicaid claims submitted under his provider number. As relevant to this case, the July 31 letter disallows Medicaid reimbursement for the use of IVIG on HIV-infected adults. Stating that this use of IVIG is not "indicated" and is "investigational," the letter adds: "Medicaid policy prohibits payment for experimental procedures or non-FDA approved drugs and requires that all services rendered to Medicaid recipients be medically necessary." Chapter 1 of the Physician Coverage and Limitations Handbook (Handbook) states: "Medicaid reimburses for services that are determined medically necessary . . .. 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 services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The Handbook also provides: "Medicaid does not reimburse for non-FDA approved medications. Medicaid does not reimburse procedures that are experimental or when non-FDA approved medications are included in the procedures." The Medicaid Provider Reimbursement Handbook (Reimbursement Handbook) defines "experimental or clinically unproven procedures" as: "Those newly developed procedures undergoing systematic investigation to establish their role in treatment or procedure that are not yet scientifically established to provide beneficial results for the condition for which they are being used." Although not directly applicable to the Medicaid program, Section 2049.4 of Chapter II, Part 3, Health Care Financing Administration Carriers Manual (HCFA Manual) states, in part: Use of the drug or biological must be safe and effective and otherwise reasonable and necessary. . . . Drugs or biologicals approved for marketing by the [FDA] are considered safe and effective for purposes of this requirement when used for indications specified on the labeling. Therefore, you may pay for the use of an FDA approved drug or biological if: It was injected on or after the date of the FDA's approval; It is reasonable and necessary for the individual patient; and All other applicable coverage requirements are met. * * * An unlabeled use of a drug is a use that is not included as an indication on the drug's label as approved by the FDA. FDA approved drugs used for indications other than what is indicated on the official label may be covered under Medicare if the carrier determines the use to be medically accepted, taking into consideration the major drug compendia, authoritative medical literature and/or accepted standards of medical practice. . . . Accordingly, the Florida Medicare Local Medical Review Policy manual recognizes the use of IVIG for pediatric HIV infections, but warns: "IVIG is not indicated for use in adult HIV patients " Except for the administration of IVIG, Respondent provided state-of-the-art services to HIV-infected adults. The present record contains scant medical evidence of the effectiveness of IVIG in treating HIV-infected adults. Against considerable evidence questioning the medical necessity of IVIG in treating HIV-infected adults, Respondent offered undocumented anecdotal evidence of successful use of IVIG among his adult patients and two synopses of undisclosed preliminary data suggesting effectiveness of IVIG in HIV-infected adults. Respondent did not effectively oppose Petitioner's explanation for the differences in IVIG's effectiveness in treating adults and children, nor did Respondent offer any rationale for his claim of IVIG's effectiveness in HIV-infected adults. On this record, Petitioner has demonstrated that the use of IVIG to treat HIV-infected adults is not effective and, thus, not medically necessary.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order ordering Respondent to reimburse the Medicaid program $74,100.04 in overpayments for services that were not medically necessary. DONE AND ENTERED this 19th day of April, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2002. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Anthony L. Conticello, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Louise T. Jeroslow Law Offices of Louise T. Jeroslow 6075 Sunset Drive, Suite 201 Miami, Florida 33143
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1, The Agency issued the Petitioner, an applicant for a change of ownership license for a home health agency, the attached Amended Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review. (Ex. 1) The case was forwarded to the Presiding Officer for an informal hearing to be conducted pursuant to Section 120.57(2), Florida Statutes. 2. During the pendency of this proceeding, the Agency filed a Motion To Relinquish Jurisdiction As Moot And for Rendition of Final Order based on the license that is subject of the instant matter no existing due to the denial of the renewal of that license. The Presiding Officer entered a Recommended Order of Dismissal. (Ex. 2) The Agency adopts the findings of fact and conclusions of law set forth in the Recommended Order of Dismissal. Based upon the foregoing, it is ORDERED: 3. The request for hearing is DISMISSED. 4. The Amended Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review is UPHELD. 5. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. Filed February 23, 2015 4:53 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this e4/ day of Cctobre 2 , 2014. Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct ¢ copy at this Final Order was served on the below-named persons by the method designated on this774"day of Bf 2014, Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones Facilities Intake Unit Health Care Clinic Unit Manager (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Esquire Warren J. Bird, Assistant General Counsel Presiding Officer Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Manuel R. Lopez, Esquire Manuel R. Lopez & Associates, P.A. 770 Ponce De Leon Boulevard Penthouse Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) Itis unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the Respondent pursuant to Chapter 408, Part IJ, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the Respondent the attached Administrative Complaint. (Ex. 1) 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s health care clinic license is voluntarily surrendered effective as of September 1, 2012. 6. The Administrative Complaint is withdrawn. 7. The Respondent is responsible for providing any refunds that may be due to any clients. 8. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 9. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially Filed June 11, 2013 8:37 AM Division of Administrative Hearings affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this ££ day of pre , 2013. Elizabeth Dudek, Secretary Agency for Heath Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and come et this Final Orderwas served on the below-named persons by the method designated on this SO ay of Jn , 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Thomas Jones, Unit Manager (Electronic Mail) Licensure Unit Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo-Davis, Field Office Manager Medicaid Accounts Receivable Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley David Glickman, D.O. Medicaid Contract Management 8159 South Savannah Circle Agency for Health Care Administration Davie, Florida 33328 (Electronic Mail) (U.S. Mail) Warren J. Bird, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
