The Issue Whether Respondent should refuse to renew Petitioner's medical license on the ground that Petitioner has been terminated for cause from the Florida Medicaid program, as Respondent has indicated it intends to do.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a Florida-licensed medical doctor seeking the renewal of her license. She used to participate as a provider in the Florida Medicaid program. On May 12, 2003, the Agency for Health Care Administration (AHCA) issued a Final Order in Audit No. CI 01- 1713-000, finding that Petitioner received Medicaid overpayments in the amount of $203,059.61, and ordering that she "refund forthwith [that sum] together with such statutory interest as is set forth in § 409.913(24)(b), Florida Statutes." On June 13, 2003, Petitioner filed a motion requesting that ACHA's May 8, 2003, Final Order, be set aside. AHCA denied the motion by Order dated November 18, 2003. Not having received from Petitioner the monies she was ordered to pay, AHCA sent Petitioner a letter, dated May 30, 2008, advising her that it intended to fine her $5,000.00 for having failed to pay her "outstanding debt that [was] owed to [ACHA], related to a Medicaid overpayment"; that "[i]f payment [was] not received or arranged for, within 30 days of receipt of this letter, [AHCA] [might] withhold Medicaid payment"; and that "failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by [AHCA] [might] result in additional sanctions, which [could] include, but [would] not [necessarily be] limited to, fines, suspension, and termination from the Medicaid Program." AHCA's May 30, 2008, letter also contained a Notice of Administrative Hearing and Mediation Rights. By letter dated August 13, 2008, AHCA advised Petitioner that it was "suspending [her] participation in the Medicaid program" due to her still having an "outstanding debt . . . owed to [AHCA]" and that "continued non-compliance [would] result in this suspension converting to termination from participation in the Medicaid program in accordance with Rule 59G-9.070, F.A.C." AHCA's August 13, 2008, letter also contained a Notice of Administrative Hearing and Mediation Rights. On June 11, 2009, Horace Dozier, the Field Office Manager in AHCA's Office of the Inspector General, Medicaid Program Integrity, sent Petitioner a letter, which read as follows: Our records indicate that on August 13, 2008 the Agency for Health Care Administration (Agency) issued a final agency action letter imposing a sanction for an outstanding debt that is owed to the Agency. The letter further informed you that, in accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), continued non- compliance would result in termination from the Medicaid program. As such, the Agency is hereby terminating your participation in the Medicaid program. This includes any action that results in a claim for payment to the Medicaid program as a result of furnishing, supervising a person who is furnishing, or causing a person to furnish goods or services. This will take effect immediately. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. If a request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Horace Dozier, Field Office Manager, Agency for Health Care Administration, Medicaid Program Integrity . . . . The last paragraph of the "attached Notice of Administrative Hearing and Mediation Rights" to which Mr. Dozier referred in his letter read as follows: If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR [sic] shall be conclusive and final. Notwithstanding the assertion made in the last sentence of the first paragraph of the body of Mr. Dozier's June 11, 2009, letter that "[t]his will take effect immediately," the determination to terminate Petitioner from the Medicaid program for nonpayment of an "outstanding debt . . . owed to [AHCA]" was treated by AHCA (appropriately, and consistent with the last paragraph of the "attached Notice of Administrative Hearing and Mediation Rights") as merely "intended action" that had not yet ripened into final agency action. Petitioner requested an administrative hearing on this "intended action," but she subsequently, on or about November 12, 2009, withdrew her request by filing with ACHA a Withdrawal of Motion for Formal Hearing and Mediation. On February 16, 2010, ACHA (through its Secretary) issued its Final Order terminating Petitioner from the Florida Medicaid program. The body of AHCA's Final Order provided as follows: THIS CAUSE is before me for issuance of a Final Order on a Final Agency Action Letter dated June 11, 2009 (C.I. # 087796000). By . . . Letter, the Agency for Health Care Administration ("AHCA" or "Agency") informed the Petitioner, Trinidad Rojas, M.D., (hereinafter "PROVIDER"), that the Agency was terminating the PROVIDER from the Medicaid Program pursuant to Section 409.913 and Rule 59G-9.070 for non-compliance of payment [of] an outstanding debt owed to the Agency for overpayments (Final Order Rendered May 12, 2003 and Final Order Rendered June 15, 2007) and a fine sanction of $5000.00.[2] The Letter provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest termination. The PROVIDER filed a petition with the Agency requesting an administrative hearing on July 13, 2009. This petition was dismissed without prejudice on July 16, 2009. On August 1, 2009, PROVIDER filed an amended petition, which was forwarded to the Division of Administrative Hearings ("DOAH") by the Agency on August 12, 2009. On November 12, 2009, PROVIDER filed a Withdrawal of Motion for Formal Hearing and Mediation with the Division of Administrative Hearings. Based on Petitioner's Withdrawal of Motion for Formal Hearing and Mediation, the ALJ issued an Order Closing File, cancelled the hearing scheduled for November 17, 2009, and relinquished jurisdiction to the Agency on November 13, 2009.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued refusing to renew Petitioner's medical license. DONE AND ENTERED this 31st day of May, 2011, 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 31st day of May, 2011.
Findings Of Fact Petitioner is an existing Medicaid provider. Specifically, Petitioner provides support coordination services to the developmentally disabled under the Development Services/Home and Community Based Services waiver support coordination program (Program). Petitioner has been a Program provider since 1993. The purpose of the Program is to prevent the institutionalization of developmentally disabled persons through the development of community supports and services. Florida and the federal government fund the Program, in accordance with the provisions of Title 42, Code of Federal Regulations, Sections 440.180 and 441. Traditionally, Respondent has been the primary agency in Florida responsible for discharging Florida's responsibilities under the Program. Chapters 96-387 and 95-393, Laws of Florida, transferred certain responsibilities under Medicaid from Respondent to the Agency for Health Care Administration. However, the Division of Developmental Services (Division), which is part of Respondent, continues to develop substantive policy under the Program. Under Section 393.001(9), Florida Statutes (1995), Respondent, primarily through the Division, receives and administers federal and state funds for the developmental disabilities program established under state and federal law. As a Program provider, Petitioner received a memorandum dated May 5, 1995, requiring that Petitioner execute a revised Medicaid provider agreement and waiver support assurances to continue to participate in the Medicaid program after July 1, 1996, as a provider of services in the Program. The memorandum warns that it serves as the required 30-day notice of termination of the existing agreement if Petitioner fails to sign and return the revised documents by the deadline. Petitioner signed and returned the revised documents by the deadline to continue to participate under the Program. The documents are a Medicaid support agreement, waiver support assurances, and an "HRS Developmental Services Process Monitoring Instrument Waiver Support Coordination May 10, 1996 Version" (Monitoring Instrument), of which the waiver support assurances are a part. This order refers to all of the revised documents collectively as the Revised Documents. Respondent has required all persons seeking to provide services under the Program to sign and deliver the Revised Documents. The Revised Documents contain different provisions from their predecessors in effect prior to July 1, 1996. The Medicaid provider agreement sets forth the general provisions governing Respondent and each provider under the Medicaid program. Many, though not all of these provisions, are the same as provisions of Section 409.907, Florida Statutes. The record does not demonstrate to what extent the contract provisions not found within Section 409.907 are the same as provisions of other state or federal statutes, rules and regulations, or case law. The record also does not demonstrate if variations between contract provisions and provisions of Section 409.907 are substantial. The revisions to the waiver support assurances, to which Petitioner objects, pertain to quality assurance. The monitoring instrument states, at page 3: Rather than continuing past policies of focusing state quality assurance efforts solely on traditional monitoring activities, [D]evelopmental [S]ervices is seeking to transform its current quality assurance system to one which elicits valued outcomes for the individuals served in conjunction with the overall service delivery system processes contributing to the achievement of these individualized outcomes. This process will lead to an enhanced system of quality assurance known as quality improvement. Toward this end, the monitoring instrument explains, at page 4: Around December 1993, a task force of providers, central office staff, program administrators and direct services staff was convened for the purpose of revisioning [sic] the traditional [D]evelopmental [S]ervices quality assurance system. . . . We believe the quality enhanced monitoring system described in this work book is the first step in moving development services toward a revisioned [sic] system of measuring quality. The Monitoring Instrument states the nature of the monitoring process, the requirements of self-assessment and recertification, the protocol for onsite monitoring by the Division, and the conditions for termination of a provider's services.
The Issue Whether Respondent is guilty of being in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 5, 1987, a Florida-licensed respiratory therapist. He holds license number CRT 830. Respondent has a lengthy history of drug abuse. In or about June of 1996, when he was employed as a blood gas laboratory technologist by Miami Children's Hospital (MCH) in Miami, Respondent submitted to a drug screen (performed at the request of MCH) and tested positive for cocaine. 2/ MCH referred Respondent to South Miami Hospital's (South Miami's) addiction treatment program, to which Respondent was admitted on June 6, 1996. Respondent successfully completed the South Miami program. He was discharged from the program on July 3, 1996. Respondent thereafter voluntarily enrolled in the state-approved program for impaired Florida health care practitioners offered by Physicians Recovery Network (PRN). PRN monitors the care, treatment, and evaluation of the impaired practitioners in its program. On July 11, 1996, Respondent entered into an "Advocacy Contract" with PRN, in which he agreed to, among other things, the following: "participate in a random urine drug and or blood screen program through [the] PRN office within twenty-four hours of notification"; "release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate [his] continuing progress in recovery"; "abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medication unless ordered by [his] primary physician, and when appropriate, in consultation with the Physicians Recovery Network"; "attend a self help group such as AA or NA"; "participate in continuing care group therapy"; "attend a 12- step program of recovering professionals"; "notify Physicians Recovery Network in the event of use of mood altering substances without a prescription"; and "be appropriately courteous and cooperative in all contacts with the PRN staff and representatives of PRN." The contract further provided that "[r]elapse will result in re-assessment and possible residential treatment." A "monitoring professional" or "facilitator" was appointed by PRN to assist in Respondent's recovery. PRN "facilitators" are responsible for providing therapy in a group setting to those under their charge and reporting to PRN any suspected failure on the part of a member of their group to adhere to the terms of the group member's "Advocacy Contract." (There are 33 "therapy groups" led by PRN "facilitators" throughout the State of Florida.) In March of 1997, Respondent's "facilitator" reported to PRN that Respondent had started using cocaine again (this time intravenously), resulting in his being fired from his position at Miami Children's Hospital. PRN responded to the facilitator's report by voiding Respondent's July 11, 1996, "Advocacy Contract." Respondent was thereafter involuntarily hospitalized pursuant to the Baker Act at the request of his family. Following his discharge from the hospital, Respondent was reported missing. In June of 1997, Respondent resurfaced and, pursuant to a court order, was admitted to Miami-Dade County's Treatment Alternative to Street Crime (TASC) program. In August of 1997, after Respondent completed Phases I and II of the TASC program, he was evaluated, at PRN's request, by Anthony P. Albanese, M.D., the Co-Director of the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach. Dr. Albanese determined that Respondent was suffering from "cocaine . . . dependence in early remission" and was "medically able to return to work." On September 10, 1997, Respondent entered into a second "Advocacy Contract" with PRN, which was similar to the first contract. In March of 1998, after receiving word that Respondent had again relapsed, as evidenced by the results of a urine screen, which revealed the presence of cocaine metabolites, PRN voided Respondent's second "Advocacy Contract." Subsequent analysis of Respondent's hair confirmed that he had been using cocaine. In July of 1998, Respondent was evaluated by David Myers, M.D., a PRN-approved evaluator and treatment provider. Dr. Myers diagnosed Respondent as having "cocaine dependency, continuous and severe," "marijuana dependency," and "nicotine dependency." On July 7, 1998, Respondent was admitted as a patient in the Tampa-based Healthcare Connection P.I.N. [Professionals in Need] Program (P.I.N. Program). Respondent was referred, through the P.I.N. Program, for treatment at the Salvation Army Adult Rehabilitation Center. On January 8, 1999, after receiving treatment at Salvation Army Adult Rehabilitation Center and successfully completing the P.I.N. Program, Respondent entered into a third "Advocacy Contract" with PRN, which was similar to the first two contracts. In early February of 1999, Respondent's "facilitator" reported that Respondent was not attending required group meetings and could not be located. Based upon the facilitator's report, PRN voided Respondent's third "Advocacy Contract." At no time subsequent to the voiding of his third "Advocacy Contract" has Respondent made contact with PRN. Because of the "continuous and severe" nature of his cocaine dependency, Respondent is presently unable to deliver respiratory care services with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order finding Respondent is in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and disciplining him therefor by revoking his license and fining him $500.00. DONE AND ENTERED this 10th day of January, 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 10th day of January, 2001.
The Issue Whether Petitioner is entitled to an award of attorney's fees against Respondent pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner was a prevailing small business party in DOAH Case 93-4194. Petitioner timely applied for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. The statutory cap of $15,000 is a reasonable amount for the award should it be concluded that Petitioner is entitled to fees and costs. In DOAH Case 93-4194, the Petitioner successfully challenged the Respondent's action in temporarily withholding all of Petitioner's payments under the medicaid program. John Whiddon, the Chief of the Florida Medicaid Program Integrity at that time, made the decision to withhold the payments to Petitioner. The information which triggered Mr. Whiddon's decision was a letter from John G. Morris, Jr., who was director of the Medicaid Fraud Control Unit. Mr. Morris advised that ". . . there is reliable evidence that the [Petitioner] billed for home health care services that were not provided and this investigation will be referred for criminal prosecution". The provisions of 42 CFR 455.23 authorize a State Medicaid agency such as the Respondent to withhold Medicaid payments, in whole or in part, upon receipt of the State agency of ". . . reliable evidence that the circumstances giving rise to the need for a withholding of payments involve fraud or willful misrepresentation under the Medicaid program." In DOAH Case 93-4194, it was concluded that Respondent had failed to establish that it had "reliable evidence" to withhold Petitioner's Medicaid payments. It was further found that even if Respondent had such reliable evidence, it could not withhold all of Petitioner's payments unless it proceeded pursuant to Section 120.59(3), Florida Statutes. Absent such emergency order pursuant to Section 120.59(3), Florida Statutes, it was concluded that any withholding would be subject to the following limitations on the withholding of Medicaid payments contained in Section 409.913(17), Florida Statutes: (17) The department may withhold Medicaid payments to a provider, up to the amount of the alleged overpayment, pending completion of an investigation under this section if it has reasonable cause to believe that the provider has committed one or more violations in relation to such payments. With the exception of providers terminated under the provisions of s. 120.59(3), in which case all payments shall be immediately terminated, the department may withhold payments under this provision, the monthly Medicaid payment may not be reduced by more than 10 percent, and the payments withheld must be paid to the provider within 60 days with interest at the rate of 10 percent a year upon determining that no such violation has occurred. If the amount of the alleged overpayment is in excess of $75,000, the department may reduce the Medicaid payments up to $25,000 per month. The Recommended Order in DOAH Case 93-4194 was adopted in toto by Respondent as a Final Order on January 28, 1994. The Medicaid Program Integrity is responsible for the oversight and regulatory aspect of the Florida Medicaid Program. Program Integrity is a part of the Agency for Health Care Administration and was formerly a part of the Department of Health and Rehabilitative Services. The Medicaid Fraud Control Unit (MFCU) is a part of the Office of the Auditor General. The MFCU is responsible for investigating abuse and criminal fraud pertaining to the medicaid program. Federal regulations require that Program Integrity and MFCU be totally separate and apart from each other. MFCU and Program Integrity operate under a memorandum of agreement which allows them to conduct separate investigations. When MFCU advises Program Integrity that it is investigating a Medicaid provider, Program Integrity routinely stops any investigation it may have started so as not to jeopardize the criminal investigation by the MFCU. Program Integrity is not provided any information about MFCU's criminal investigation until certain kinds of actions have occurred or when MFCU desires certain support. Mr. Whiddon testified that Program Integrity routinely takes administrative action against a Medicaid provider when it learns that MFCU is conducting a criminal investigation against that provider. Mr. Whiddon also testified that information received by Program Integrity from MFCU has historically proven to reliable. Mr. Whiddon did not testify as to the nature of the administrative action that is routinely taken when Program Integrity learns that MFCU is conducting a criminal investigation. There was no evidence as to the rules or statutes, other than a reference to 42 CFR 455.23, upon which Program Integrity bases such administrative actions. Based upon information from the Medicaid claims processing subsystem and the information from MFCU, Mr. Whiddon had reason to suspect that substantial sums were being paid to Petitioner for services for which there was no entitlement. The Petitioner was receiving approximately $28,900 per week from Medicaid when it was decided to temporarily withhold Medicaid payments. After the receipt of the MFCU letter, Mr. Whiddon believed something had to be done and began to review the options that he believed were available to him. Mr. Whiddon concluded that the most appropriate remedy was to withhold Medicaid payments pursuant to 42 CFR 455.23, which provides for a hearing at which the Petitioner could submit information that would justify its billings. Mr. Whiddon did not believe at the time he decided to temporarily withhold Petitioner's Medicaid payments that the issue was one of an overpayment. He also did not believe that it would be appropriate to issue an immediate final order pursuant to Section 120.59(3), Florida Statutes, because of the limited information available to him. Respondent failed to establish that it had reliable evidence to temporarily withhold all of Petitioner's Medicaid payments.
The Issue The issue in this case is whether Petitioner must reimburse Respondent for overpayments totaling $2,851.19 which Petitioner received from the Florida Medicaid Program during the period May 24, 1999 through January 26, 2001.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is an agency of the State of Florida. The Agency is responsible for administering the Florida Medicaid Program. See Chapter 409, Florida Statutes. Among other responsibilities, the Agency is authorized "to recover overpayments . . . as appropriate . . . ." Section 409.913, Florida Statutes. Petitioner, Meji, Inc., d/b/a 7th Avenue Pharmacy (hereinafter referred to as "Meji"), was, at all times pertinent to this case, a duly authorized Medicaid provider, having entered into a Medicaid Provider Agreement with the Agency. Meji was assigned Medicaid Provider Number 0165076-00. Meji is also a licensed pharmacy in Florida, having been issued license number PH0016158. As a Medicaid provider, Meji is authorized to dispense drugs and supplies to Medicaid recipients, for which Meji is entitled to reimbursement from the Medicaid Program. In return, Meji has agreed to comply with all governing statutes, rules, and policies, including policies set forth in the Florida Medicaid Prescribed Drug Services Coverage Limitations and Reimbursement Handbook, incorporated by reference into Rule 59G- 4.250(2), Florida Administrative Code. On March 20, 2001, an audit was performed of payments from the Medicaid Program to Meji. On January 24, 2002, a Provisional Agency Audit Report was issued finding that Meji had received $40,062.52 in overpayments from the Medicaid Program and offering Meji an opportunity to respond to the Agency's provisional determination. When Meji failed to respond to the Provisional Agency Audit Report, the Agency issued a Final Agency Audit Report informing Meji that the Agency intended to seek reimbursement of the $40,062.52 in overpayments Meji had received for services provided during the period May 24, 1999 through January 26, 2001. The Final Agency Audit Report was issued March 8, 2002. Meji requested a hearing to contest the Agency's determination and provided documentation not previously provided to the Agency. On March 19, 2003, after reviewing the newly provided documentation, the Agency issued an Amended Final Agency Audit Report in which the Agency informed Meji that it had received overpayments of $2,851.19. In response to this notice, Meji requested a formal administrative hearing by letter dated March 20, 2003. The amount of the overpayments which the Agency seeks to recoup in this proceeding was determined by taking a statistically valid random sample of Meji's submitted Medicaid claims submitted during the audit period. The amount of the overpayments found in the random sample was then extended to the total of Meji's claims for the audit period based upon generally accepted statistical formulas and methods. By failing to respond to the Agency's Request for Admissions, Meji is deemed to have admitted the validity of the statistical formula utilized by the Agency. The Amended Final Agency Audit Report, along with the supporting work papers, were offered and accepted in evidence in this case. The Amended Final Agency Audit Report, in an attached Pharmacy Audit-Final Report, sets out the manner in which the overpayments were calculated. Those calculations are further described in proposed finding of fact P.(1) through (6) of the Respondent's Proposed Recommended Order and Incorporated Closing Argument. Those findings are hereby accepted and incorporated into this Recommended Order by reference. The Amended Final Agency Audit Report and supporting work papers admitted in evidence in this case show that Meji received overpayments in the amount of $2,851.19. No evidence to the contrary was offered by Meji. The Agency incurred costs during the investigation of this matter. The amount of those costs was not known at the time the final hearing was conducted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Meji's to repay the Agency the principal amount of $2,851.19 plus interest as provided in Section 409.913, Florida Statutes. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 15th day of July, 2003. COPIES FURNISHED: Debora A. Fridie, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Mail Station 3 Tallahassee, Florida 32308 Sola Gafaru, President Meji, Inc. 14812 Northwest 7th Avenue Miami, Florida 33168 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Fort Knox Building III Tallahassee, Florida 32308
Findings Of Fact On July 31, 1987, DOA mailed a Request for Proposal, (RFP), to various Health Maintenance Organizations, (HMOs), soliciting proposals for the providing of HMO services in the Orlando service area. Petitioner, Cigna, and the various Intervenors herein, submitted proposals which were opened by DOA on August 28, 1987, with a contemplated date of award of September 14, 1987 and an effective date of contract on January 1, 1988. Section 2 of the RFP defined the general purposes of the procurement as being to meet benefit objectives of DOA and to provide high quality benefits and services to state employees. Specifically, the objectives of the RFP were: A proactive approach to cost containment, including an emphasis on aggressive claims management, utilization review, and superior statistical reporting. Quality medical care which encourages health promotion, disease prevention, early diagnosis and treatment. Stability in the financial structure of offered health plans. Professional, high quality service in all administrative areas including claims processing, enrollment, membership services, grievances, and communications. Competitive premium rates which take into account the demographics and, if appropriate, the claims experience of state employees. Other stated objectives included: Have each county or contiguous group of counties be considered one service area. Award no more than two contracts per service area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Have reciprocal agreements between locations, if an HMO has multiple service areas. Enter into a two year, non-experience rates contract. A provision will be included tying renewal action at each of the two renewals to the consumer price index, (CPI), for medical care services. In order to be considered as a "qualified" proposer, an organization had to be licensed by the Department of Insurance pursuant to Part II, Chapter 641, Florida Statutes. Section IX of the RFP listed five major criteria for evaluation of the proposals. They were: Premium Cost Extensiveness of service area - by county and/or contiguous counties. Plan Benefits as follows: Covered services Limitations and exclusions Co-payments, deductibles, and coinsurance features Range of providers including specialists and numbers of hospitals D. Out of service area coverage F. Grievance procedures Accessibility as follows: Reciprocal agreements Provider locations Number of primary care physicians and specialists, in relation to membership Completeness of proposals The first four of the above objectives were called for by the Legislative action providing for these procurements to be effective January 1, 1988. The fifth, completeness of proposals, was not identified by the Legislature but was added by DOA. The Department reviewed and evaluated all the proposals submitted by Petitioner and the various Intervenors. Each proposer was evaluated by three individual evaluators. Two separate sets of evaluations were performed; the second coming upon the direction of the Secretary who, after the first evaluation and recommendation of award, concluded the standards for evaluation had been too subjective and directed a second evaluation utilizing more objective standards. During this second evaluation process, after the actual evaluations had been done but before the recommendation was forwarded to the Secretary, several computer treatments of the raw scores were accomplished by Mr. Nye because of additional unidentified factors brought to his attention. The final computer run identified that Central Florida Physicians, not a party to this action, received the highest point total followed by Health Options, Pru-Care, and Petitioner, Cigna. Mr. Nye, who had designed and supervised the evaluation process, recommended to the Secretary that Central Florida Physicians, Health Options, and Pru-Care receive the award even though the guidelines called for only two recommendees. Central Florida Physicians was recognized to be in financial difficulties though it received the highest rating, and in order to provide two viable candidates in the event that provider should be disqualified, Health Options and Pru-Care were added. Central Florida Physicians was, in fact, subsequently disqualified due to financial insolvency. This left Health Options and Pru-Care as the two providers with the highest evaluations and the Secretary made the award to them. At the final count, Health Options received a point total of 64.635; Pru-Care, 57.415; and Cigna, 56.83, or a difference of .585 between Pru-Care and Cigna. According to Mr. Black, an administrator with the Department of Insurance and responsible for the licensing of HMOs and other health care facilities, as of January 12, 1988, Pru- Care was not licensed in Volusia or Lake Counties and department records show that Pru-Care has never been or requested to be licensed in those counties. Mr. Beckerink, the Director of Planning for Cigna of Florida, who oversaw Cigna's proposal for the Orlando area and who reviewed DOA's evaluation of the various proposals submitted, carefully examined the evaluation forms for both Cigna and Pru- Care and concentrated on scores relating to costs, benefits, accessibility, service area, and completeness. He noted that Pru-Care received 10 points for proposing service in Orange, Seminole, Osceola, Lake, and Volusia Counties though it is not licensed in the latter two, whereas Cigna received only 4 points for Orange and Seminole Counties. Cigna is licensed in all five counties and has hospitals and physicians in Seminole, Osceola, and Orange Counties. He contends Pru-Care received credit by the evaluators for five counties when it is licensed only in three, an unearned award of 4 points, and Cigna was awarded credit for only two counties when it is licensed in five, an improper denial of 6 points. According to Mr. Nye, the award to Pru-Care was based on its representation it would provide service in five counties. The Department of Insurance could not tell him, at the time, in which counties Pru-Care was licensed. As a result, he took the proposal, which indicated the five counties, at face value. Credit was given only for full counties to be served and Cigna's proposal indicated it would deliver service to two full counties and to only portions of three counties. The evidence indicates that Pru-Care's facilities are primarily in Orange and Seminole Counties with some service offered in the extreme northern portion of Osceola County, too far away for those individuals living in the southern portion of that county reasonably to take advantage of it. Mr. Nye indicates that driving time, which would be the problem here, is not a consideration in assessing accessibility, but merely a factor in quality of service. The department is not concerned with whether it is convenient for the employee to get to the service but merely whether the service will be offered to anyone residing in the county. For this reason, Pru-Care was awarded credit for Osceola county since it proposed to enroll any eligible employee living in the county whether service was convenient to that party or not, whereas Cigna, which limited it's enrollment in certain counties to those personnel living in only a part of the county, was not given any credit for those partially served counties. Mr. Nye admits that had he known Pru-Care was not fully licensed, he would have deferred to legal counsel, but would most likely not award points if a provider is not licensed in a county for which it proposes service. Mr. Breckerink identified additional areas in the evaluation wherein he believes errors were made, the correction of which would result in an adjustment of the award of points. For example, in evaluating plan benefits, the evaluator gave Pru- Care 20 points when only 10 points are available for award without a demonstration of additional services. For emergency room availability, Cigna was awarded 5 points when it should have received 10. In the area of co- payments, Cigna was awarded points and should have received 23. Concerning range of providers, Cigna's proposal lists seven hospitals yet the evaluation form only reflects six, resulting in a shortage of 10 points. As to turnaround time, Cigna indicated it would accomplish payment in 60 days whereas Pru-Care indicated it would in "an average" of two weeks. As a result, Mr. Breckerink, who points out Cigna's actual time is 30 days and it therefore should have been given 30 points, contends there is no opportunity for a valid comparison here since Pru-Care's answer is not responsive to the RFP's call for" an "expected" time. His point is well taken. With regard to accessibility, Mr. Breckerink states that Cigna got only 20 points for its two allowed counties but should have received 30 points since it has hospitals in three counties in the service area. DOA's rationale on this point is identical to that on the issue of full counties served. He also alleges that Cigna was shortchanged by at least 2 points on the number of counties in which specialty providers are represented and by at least 1 point on the number of providers. Mr. Nye admits Pru-Care should have received 5 points instead of 10 for benefits. This would reduce its' raw score in this area from 258 to 253 points. Nye contends, however, that the points awarded Pru-Care for its' turnaround time were correct. He does not consider the question to be a bad one since it was asked equally of all providers and each responded as it saw fit realizing that its response might become a part of a contractual obligation. This reasoning is specious at best and does not address the real question of the fairness and appropriateness of the question asked. Further, Mr. Nye also admitted that under certain circumstances, if Pru-Care were to lose credit for those two counties in which it was not shown to be licensed, the change could result in a difference sufficient to reverse the relative standings of Pru-Care and Cigna. Mr. Breckerink alleges, and Mr. Nye admits that multiple computer runs were made utilizing the raw scores developed by the evaluators before the recommendation as to award was forwarded to the Secretary. On the first run for the second evaluation, Cigna was in second place with a point total of 71.1 and Pru-Care was third with 65.86 points. On the second run, which Nye contends was done to make the computer run consistent with what had been said at the pre-bid conference and in the RFP, Cigna dropped from second place to third with 58. 2 points and Pru-Care went from third to fourth with 57.195 points. In the third run, which ultimately formed the basis for the award, the positions of Cigna and Pru-Care reversed with Cigna dropping to 56.83 points and Pru-Care rising to 57.415. Central Florida Physicians remained in first and Health Options in second. When Central Florida Physicians dropped out due to insolvency, Health Options became number one and the other two each went up one place in the standings without changing relative positions. According to Mr. Breckerink when the mistakes were identified and changes made in the raw scores, Cigna got a total of 23 more points but Pru-Care still got 16 more points than it should have. He contends that if the mistakes were accurately corrected, if Cigna were to get all the points it should and Pru- Care lose all it should not legitimately have, Cigna would come out higher in the overall ranking than Pru-Care. However, he admits there are factors involved about which he does not know which may affect the standings. What is clear is that while Mr. Breckerink could not clearly follow the evaluation procedure, neither can others charged with evaluating it. What is more, notwithstanding the direction given in the objectives of the procurement that only two providers be awarded contracts, the department continuously has been unable to abide by this guideline. In its September 11, 1987 recommendation after the first evaluation sequence, Mr. Nye recommended, for the Orlando service area, awards to Central Florida Physicians, Cigna, and Pru-Care for a part of the service area and an additional award to Health Options and Florida Health Care for other counties in the service area. When the Secretary directed the objective second evaluation, no change was made to the number of providers to be recommended (two), but again, on October 6, 1987, Mr. Nye recommended three providers, Central Florida Physicians, Health Options, and Cigna. No evidence was presented as to why this recommendation was not implemented, but it is seen that on October 26, 1987, Mr. Nye submitted his third set of recommendations to the Secretary, this time recommending only Central Florida Physicians, and Health Options. Being still unable to finalize the process, on October 30, 1987, Mr. Nye submitted his fourth set of recommendations to the Secretary recommending, for the most part, three providers, but specifically recommending Pru-Care for award in Lake and Volusia Counties, where it was arguably not even licensed. No justification or explanation for this vacillation was forthcoming from the Department and the exercise appears to have been clearly capricious.
Recommendation In view of the foregoing, it is, therefore: RECOMMENDED that the Department of Administration issue a Final Order rejecting all proposals submitted for the Orlando service area and readvertise for new proposals if deemed appropriate. RECOMMENDED this 19th day of April, 1988 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5525BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Cigna: 1 - 5. Accepted and incorporated herein. First sentence not a Finding of Fact. Second sentence accepted except for conclusion as to legal license status of Pru-Care. Rejected as a restatement of testimony and not a Finding of Fact. First three sentences rejected as restatements of testimony. Balance accepted with the assumption that "those counties" indicates Lake and Volusia counties. First and second sentences rejected as restatements of testimony. Third sentence accepted. Accepted and incorporated herein. First and second sentences rejected as restatements of testimony. Third sentence accepted as a possibility and, not a fact. First sentence accepted and incorporated herein. Second sentence rejected. Accepted. Accepted. Accepted and incorporated herein. Accepted except for use of word "awarded" in last sentence. Award is a function of the Secretary. A better word would be "recommended". Accepted. Reject Accepted. Rejected. Accepted except for word "significantly". First sentence accepted. Second sentence rejected as not being a proper Finding of Fact. For Respondent, DHRS: 1 - 14. Accepted and incorporated as appropriate. 15 - 16. Accepted. 17 - 19. Accepted. First, second, and fourth sentences accepted. Third sentence rejected as not supported by the evidence. Accepted. Accepted. Accepted except for the last three sub-paragraphs which are not supported by the evidence. Absent. 25 - 26. Accepted except for last sub-paragraph which is rejected as a conclusion. 27. Absent. 28 - 29. Accepted. 30. Accepted. 31 - 37. Absent. 38. Accepted. For Intervenor, Pru-Care: 1 & 2. 3. Rejected as a restatement of testimony and not a Finding of Fact. Accepted. 4 - 5. Accepted. 6 - 7. Rejected as not being a Finding of Fact. 8 - 10. Accepted. 11. Accepted. 12. Rejected as not being a Finding of Fact. 13 - 14. Accepted. 15. Rejected as not being a Finding of Fact except for 16 - 17. last sentence which is accepted. Accepted. 18. Accepted. For Intervenor, Health Options: 1 - 3. Accepted and incorporated herein. 4 - 10. Accepted and incorporated herein. 11. Accepted except for the seventh sentence which is rejected. 12 - 13. Accepted. 14. Rejected as contra to the weight of the evidence. 15 - 16. Accepted. COPIES FURNISHED: David Yon, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Bldg. Tallahassee, Florida 32399 John Buchanan, Esquire 118 South Monroe Street Tallahassee, Florida 32301 Jann Johnson, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. Stanley Chapman, Esquire Ervin, Varn, Jacobs, Odom, & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Larry Carnes, Esquire 515 East Park Avenue Tallahassee, Florida 32301 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of November 1993.
The Issue Whether Petitioner was discriminated against based on his race in violation of Chapter 760.10, Florida Statutes.
Findings Of Fact Petitioner, Fabian L. Dixon, is an African-American male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Children and Families as a Unit Treatment and Rehabilitation Specialist–Forensic Corrections at Florida State Hospital, Chattahoochee, Florida. Petitioner was aware of Florida State Hospital’s strict policies regarding Falsification of Records or Statements; Willful Violation of Rules, Regulations or Policies and Conduct Unbecoming a Public Employee. Petitioner was also aware that violations of such policies could result in dismissal of the employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. 4. On June 22, 2001, at 8:32 a.m. and 8:33 a.m., Unit 21 received two faxed copies of Inter Agency Leave Transfer forms from Petitioner, each donating twenty-four hours of sick leave for a total of forty-eight hours and both purportedly signed by Norman Torres. Mr. Torres subsequently discovered that over twenty-four hours had been deducted from his sick leave balance, and discovered that forty-seven hours had been used by Fabian L. Dixon. Mr. Torres then informed his timekeeper that he only donated twenty-four hours of sick leave to Petitioner. In reviewing the sick leave donation forms it appeared the date was changed on one of the forms, then the two forms were faxed to Unit 21. Written statements from Mr. Torres indicated that he only donated twenty-four hours of sick leave to Petitioner. Because of the serious nature of the violation, and given Petitioner's past history of discipline, Respondent terminated Petitioner on September 21, 2001. The employment decision was not based on Petitioner's race and was consistent with Respondent’s disciplinary policy. On October 1, 2001, AFSCME elected to file a grievance on behalf of Petitioner under the provisions of the Master Contract between the State and the American Federation of State, County and Municipal Employees. The grievance was initially reviewed by the Department of Children and Family Services and it was determined that there was cause for Petitioner’s dismissal. The grievance was then appealed to Step 3 of the grievance procedure, which provided for review of agency action by the Department of Management Services. The issue determined at Step 3 was whether the Department had just cause to discipline Petitioner. Review of the Department’s actions revealed that the Department had just cause to discipline Petitioner and that the penalty imposed was within the range for each charged violation. The grievance and relief requested was denied. On December 4, 2001, a “Request for Arbitration” was filed by AFSCME on behalf of Petitioner and a hearing was scheduled for June 2, 2003. On May 20, 2003, AFSCME filed a Notice of Withdrawal of Arbitration. In response to the notice, the hearing was cancelled and an Order Closing the File of the Department of Management Services was issued on May 20, 2003. At hearing, Petitioner admitted that he altered the Inter Agency Leave Transfer Form, but contended that the hospital did not terminate other white employees for similar offenses. However, Petitioner failed to present any independent testimony to corroborate this claim and made absolutely no showing that there was any relationship between his race and his termination.
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, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 23rd day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 July, 2003. COPIES FURNISHED: Fabian L. Dixon 4634 Century Road Greenwood, Florida 32443 Kathi Lee Kilpatrick, Esquire Florida State Hospital Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
