The Issue The issues in this case are whether Respondent received Medicaid overpayments that Petitioner is entitled to recoup, and whether fines should be imposed against Respondent.
Findings Of Fact AHCA is the single state agency responsible for administering the Medicaid program in Florida. The Medicaid program is a federal and state partnership to cover the costs of providing health care and related services to persons meeting certain criteria, such as persons with very low income or persons with certain developmental disabilities. For persons with developmental disabilities, Florida developed a program designed to identify those who could receive needed services in their homes and communities, instead of in institutional settings. To use the state-federal Medicaid funds for home and community-based services, instead of institutional care, Florida was required to obtain a waiver from the federal government by demonstrating that its program presented a less- costly and more-effective alternative to institutionalization. This program, approved for certain developmentally disabled Medicaid recipients, is known as the Home and Community-Based Waiver (HCB waiver). Under the HCB waiver, services are planned for each developmentally disabled recipient according to the recipient's particular needs and described in a detailed support plan. The support plan articulates the goals for each type of needed service and is updated annually. A service authorization is developed from each support plan to specify the amount, by time and dollars, approved for each type of service. The support plan and service authorization documents also identify which Medicaid- contracted providers will be providing each of the approved services. At all times material to this case, Access Road has been a provider of HCB waiver services to Medicaid recipients, pursuant to a Medicaid provider contract with AHCA. Access Road's Medicaid provider number is 681213996. Between January 1, 2007, and December 31, 2008, Access Road provided HCB waiver services to a total of 16 Medicaid recipients. Fourteen recipients received services throughout the two-year period. Two recipients received services for only a short period of time near the end of the two-year period. During this two-year time period, Access Road provided four types of HCB waiver services: personal care assistance; companion care; respite care; and non-residential support. Each of these services is billed in quarter-hour units of service provided on a single day so that a claim for 16 units of service would represent that the service was provided for four hours that day. For the two-year period at issue, Access Road submitted a total of 12,927 claims for reimbursement for services provided to the 16 Medicaid recipients. For those claims, Access Road billed Medicaid and was reimbursed a total of $809,374.42. By entering into Medicaid provider agreements with AHCA, providers such as Respondent agree to "maintain and make available in a systematic and orderly manner," as AHCA requires, all Medicaid-related records for a period of at least five years. In addition, providers agree to send "at the provider's expense, legible copies of all Medicaid-related information" to authorized state and federal employees. These contractual agreements are also requirements of Florida's Medicaid laws and rules, including the Medicaid provider handbooks that are promulgated as rules. AHCA is responsible for conducting investigations and audits to determine possible fraud, abuse, overpayment, or neglect, and must report any findings of overpayment in audit reports. AHCA need not have any particular reason or cause for initiating investigations and audits of Medicaid providers. AHCA is not only authorized to conduct random audits; AHCA is required to conduct at least five percent of its audits on a random basis. In this instance, in early 2010, some question about Respondent's billings arose from a cursory review by the AHCA field office in Respondent's area. The nature of the field office's review or question about Respondent's billings was not established, but is not material, as it is only germane as background explanation of how this matter arose. The result of the area office's question about Access Road's billings was that the MPI Bureau decided to conduct an audit investigation of Respondent, as it is authorized to do, and a referral was made to MPI investigator Kristin Koelle. The purpose of the Medicaid audit was to verify that claims for which Respondent has already been paid by the Medicaid program were for services that were provided, billed, and documented in accordance with Medicaid statutes, rules, and provider handbooks. While Respondent certifies with each claim submission that the claim is proper and that all records required to be maintained in support of each claim are in fact being maintained, the audit goes behind that certification by actually reviewing those records. In setting the audit period, AHCA has up to a four-year range. The end point is set by going back at least one year, since providers have one year to submit and adjust claims. The beginning point is set no more than five years back, which is the record retention period. In this case, within the allowable four-year range, AHCA chose two years, January 1, 2007, through December 31, 2008. The next step in the audit process is to determine the population of recipients and claims for which records will be requested for review. When AHCA audits a Medicaid provider for possible overpayments, it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population, . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. (2007).3/ The audit methods used depend on the characteristics of the provider and of the claims. For example, where a provider serves thousands of Medicaid recipients during the audit period, but for each recipient, there are not many claims, such as might be the case for a hospital provider, then AHCA may use a single- stage cluster sampling methodology. Under this approach, a random sample of recipients is selected, and then all claims are examined for the recipient sample group. Alternatively, where there are too many claims to review all of the claims for each recipient or to review all claims for a sample group of recipients, a two-stage cluster sample methodology may be used, whereby a random sample of recipients is first selected and then random samples of the claims for the sample group of recipients are selected. Because of the extremely high volume of claims generated by Respondent during the audit period, Ms. Koelle determined with her supervisor that a two-stage cluster sampling methodology would be used. AHCA utilizes a computer program to carry out the random sampling selection once the method is chosen, so Ms. Koelle was able to select the two-stage cluster sampling method and, with the provider number and audit period, the computer drew from the claims database to make the random selection of the samples to be reviewed. As a general target, AHCA considers 30 recipients to be a reasonable sample size for the first stage of two-stage cluster sampling. This target sample size assumes that there are many more than 30 recipients. Since Access Road only served 16 recipients over two years, the computer selected all 16 recipients for review. AHCA's expert credibly explained that while a selection of all recipients is an unusual application of the concept of random sampling, it is an appropriate result that comports with the technical meaning of random sample: a sample chosen whereby all possible samples of the same size are equally likely to have been chosen. Thus, AHCA's expert opined that this audit involved an entirely correct and reasonable, albeit atypical, application of two-stage cluster sampling.4/ Given that AHCA's standard rule of thumb is to include 30 recipients in the "sample" group, it is apparent that what is atypical here is that the provider served only 16 Medicaid recipients over the audit period. Given the small number of recipients served, review of all 16 recipients was feasible and could only increase the reliability of AHCA's review, as AHCA's expert confirmed.5/ It was not feasible, however, to review all 12,927 claims generated by those 16 recipients, nor, presumably, would Access Road want to have been burdened with producing all records to support its 12,927 claims. As a general target, AHCA considers samples of between five and 15 claims, per recipient, to be reasonable sample sizes for the second stage of two-stage cluster sampling. Accordingly, the computer selected 219 claims, representing between five and 15 claims for each recipient in accordance with AHCA's standard. AHCA's expert opined that the sampling method used in this case was reasonable and comported with generally accepted statistical methods. His opinions and explanation were credible, were unrebutted, and are accepted. Respondent's attempt to undermine the expert's opinions, through cross-examination and argument in Respondent's PRO, was ineffective and lacked the support of contradictory expert testimony regarding generally accepted statistical methods. By letter to Access Road dated May 11, 2010, AHCA requested copies of all documentation supporting the 219 claims that were the sample group of claims for the 16 recipients. Access Road also was asked to produce specified staff records, to document that the individuals providing the services represented by the 219 claims were qualified to do so and had met background screening requirements. With its production, Access Road was required to execute a certificate of completeness attesting that all supporting documentation for the 219 claims had been produced. The May 11, 2010, letter stated that the documentation was due within 21 days from the letter's receipt, but added that Access Road should submit the documentation and certificate of completeness "within the requested timeframe, or other mutually agreed upon timeframe." Respondent did not request a different deadline. Instead, Respondent sought clarification of the documentation that had to be produced and then sent a package with documentation and a certificate of completeness, by which Respondent certified to AHCA that all documentation to support the specified billings was included. Ms. Koelle contacted Access Road after reviewing the documentation, because she was unable to determine from what was submitted that all staff were qualified or had undergone background screening. Ms. Koelle allowed Access Road additional time to submit any further documentation to address the omissions she had identified. After the additional time for staff-related documentation, Ms. Koelle conducted her audit of the 219 claims. Ms. Koelle assessed the documentation for each claim by reference to the requirements in Medicaid provider handbooks, as well as the specific service authorizations and support plan goals for each recipient. Each of the 219 claims was either allowed, denied, or adjusted to reduce the amount of the claim for reasons set forth in detailed audit work papers. Ms. Koelle input the audit results on the 219 claims-- approved, denied, or adjusted--into the computer that was programmed to carry out the two-stage cluster sampling methodology by extending the results of the claims sample reviewed to the entire claims population. The result was a preliminary audit determination that Respondent had been overpaid $219,810.12. The results of Ms. Koelle's review were summarized in a Preliminary Audit Report (PAR). The reasons for the denied and adjusted claims were grouped in two broad categories: incorrect, illegible, or insufficient documentation; and overbilling leading to overpayment. The first category included claims for services provided by ineligible or unqualified staff, claims for services with no documentation, and claims for services for which no activities were documented on a service log. The second category included claims for which the number of units of service billed was not supported by the documented activities, claims that billed for more units of service than were documented, and claims for services and activities beyond the scope of services authorized in the recipient's support plan or service authorization. The PAR and the audit work papers were sent to Respondent on June 22, 2010. Respondent was advised that additional documentation could be submitted by a specified deadline in support of claims identified as overpayments. However, in bold print, the PAR warned Respondent that while any additional submittals would be reviewed and could change the treatment of claims, "additional documentation may be deemed evidence of non-compliance with the Agency's initial request for documentation in which [Respondent was] required to provide all Medicaid-related records. Sanctions for this non-compliance will be imposed." Respondent submitted additional documentation by the specified deadline. Ms. Koelle repeated the process of reviewing the new submittals, and in some instances, approving claims that were preliminarily denied. Ms. Koelle repeated the process of inputting the revised determinations into the computer, which repeated the extension of the overpayments within the sampled claims to the entire claims population for the 16 recipients. The result was a reduced overpayment determination, which was set forth in the FAR, of $159,741.86. The reasons for the denied and adjusted claims were grouped in the same two categories and included the same problem areas that had been summarized in the PAR. The FAR determined that a total of 55 claims, representing 25.11 percent of the sample group of claims, were denied, in whole or in part, for documentation deficiency reasons (the first category); and an additional 16 claims, representing 7.31 percent of the sample claims reviewed, were denied, in whole or in part, due to overbilling (the second category). In total, nearly one-third-- 71 of the 219 claims reviewed--were found in the FAR to involve overpayments. As Respondent was warned, the production of additional documentation after the PAR resulted in the FAR's imposition of a $1,000 fine for failing to provide all Medicaid-related records within the timeframe requested in the May 10, 2010, records request. The FAR also imposed a fine of $2,500 for Respondent's failure to follow Medicaid laws, rules, and provider handbooks. Petitioner submitted in evidence the FAR and the audit work papers standing behind the FAR's determinations, including Ms. Koelle's worksheets stating the reasons for denying or adjusting specific claims and the provider documentation that was submitted and available for review of the claims that were adjusted or denied. At hearing, Respondent did not offer any evidence or testimony to refute or impeach the audit findings or to supplement the documentation relevant to the denied or adjusted claims beyond what was provided in Petitioner's audit work paper exhibits. In its PRO, Respondent presented argument disputing the findings on 15 claims for eight recipients. Thus, Respondent presented no evidence and no argument to refute AHCA's overpayment determinations for 56 of the 219 claims reviewed. The disputed claims, audit findings, and Respondent's argument are summarized below. Recipient No. 1, Claim 5: This claim was for 20 units of service (5 hours) for personal care assistance on December 10, 2007. The claim was denied based on insufficient documentation, "no activities documented on service log." Respondent's PRO argues that the audit work papers only include a service log for the week that included December 10, 2008, whereas the documentation for this claim would have been on a different service log for December 10, 2007. However, Respondent failed to offer in evidence a service log covering December 10, 2007, which Respondent claims would have documented that personal care assistance was provided on December 10, 2007, as would be necessary to rebut Petitioner's audit findings of insufficient documentation. It is possible that the service log in the audit work papers was dated incorrectly, or it may be that there was no other service log with an entry for December 10, 2007. Regardless, there is no evidence of sufficient documentation for this claim. Recipient No. 1, Claim 6: This claim was for four units of respite care service on January 7, 2008. The claim was denied because there was no service log. Ironically (juxtaposed with the last challenge), Respondent asserts that a service log in the audit work papers for the week ending January 13, 2007, is the correct service log, but that it was dated incorrectly. Even if Respondent's assertion (not supported by any testimony or evidence) is correct, Respondent overlooks the fact that the misdated service log would support Petitioner's denial of Claim 6, because that service log has no respite care entry on January 7, 2007. Therefore, either because there is no service log at all for January 7, 2008, or because the service log for January 7, 2007, contains no respite care hours, Claim 6 was properly denied. Recipient No. 1, Claim 7: Claim 7 was for four units of respite care service on January 25, 2008. The claim was denied, again because there was no service log. A service log in the work papers for the week including January 25, 2008, shows zero hours of respite care on January 25, 2008, but four hours of respite care each on January 26 and 27, 2008, which was all the respite care authorized for the week. Respondent claims in its PRO, with no supporting documentation or testimony, that there was a clerical error. According to Respondent's PRO assertion, respite care was provided to Recipient No. 1 on Friday, January 25, 2008, as billed, but was incorrectly recorded on January 26, 2008. But Respondent's PRO assertion is not evidence and cannot be the basis for a finding of fact. The fact remains that Respondent billed Medicaid for respite care services provided on January 25, 2008, and was paid for those services, but there is no documentation that the services were provided. Moreover, no evidence was offered to show that Respondent was not paid for all of the documented respite care hours on January 26, 2008, which Respondent now claims were not all provided that day. Recipient No. 2, Claim 8: Respondent billed Medicaid for 28 units (seven hours) of companion care services on February 10, 2008. The claim was adjusted by disallowing 14 units of service, based on the finding that the documentation does not support the number of units of service billed. The only documentation describing the companion care services provided was the following statement signed by the provider: "Today we went to the Library. She was very happy looking at different magazines and to [sic] different books. She was seating [sic] for a while watching the books." Respondent argues in its PRO that Petitioner arbitrarily reduced the claimed units, because the documentation is sufficient to establish the activity, even if all things done at the library were not listed. However, AHCA reasonably found excessive a claim for seven hours at a library to look at magazines and books, absent more detail and more information, which Respondent failed to provide by way of testimony or documentary evidence. Respondent's arguments that the documentation was "sufficient to establish the activity" and the reduction was "arbitrary," are not evidence to refute the contrary finding that the units billed were excessive. Recipient No. 2, Claim 15: This claim was for eight units of personal care assistance on October 16, 2008. The claim was denied due to lack of a service log. Respondent points out that there is a service log, showing two hours (eight units) of personal care assistance on October 16, 2008. However, there is an unexplained anomaly on this service log. The service log is filled out, in part, by typewriting and, in part, by handwriting. Typewritten in the blank for the total number of personal care assistance hours for the week was ten hours, but in handwriting, the "0" was changed to a "2," changing the total to 12 hours. The daily entries, all typewritten, add up to 12 hours. Therefore, AHCA could reasonably question this claim, without explanation of the service log anomaly. If the total hours of personal care assistance that week was actually ten, it may be that the entry of two hours for October 16, 2008, was not done contemporaneously with the service, but, rather, at the end of the week when the document was signed, and it became apparent that there was a shortage of personal care assistance hours that week. While bad motives are not attributed to Respondent or to the individual caregiver who completed the form, the anomaly on the form is sufficient to support Petitioner's audit finding, and Respondent has failed to rebut that finding with evidence explaining the anomaly in the documentation. Recipient No. 3, Claim 12: This claim was for 20 units (five hours) of respite care service on June 20, 2008. The claim was denied based on a finding of no documentation to support the billing. The service log for that week shows zero hours of respite care on June 20, 2008, a Friday. Five hours of respite care was provided on each weekend day, for a total of ten hours, which was all that was authorized. Respondent argued in its PRO that this was another clerical error, and the amount billed is documented under June 21 and June 22, 2008. Once again, however, Respondent provided no testimony or evidence to support this assertion. Once again, the fact remains that Respondent billed Medicaid for respite care services provided on June 20, 2008, and was paid for those services, but there is no documentation that they were provided. And once again, Respondent failed to prove that it was not reimbursed for the claimed respite care on the days on which Respondent now claims the service was not actually provided. Recipient No. 6, Claim 5: Respondent billed Medicaid for four units of companion care service on May 15, 2008. This claim was denied because the documented activities billed under companion care--meal preparation and washing dishes--were unauthorized by the support plan for companion care services. Respondent argued in its PRO that teaching a recipient meal preparation is a "meaningful activity." However, the issue is not whether it is "meaningful," but whether it is an authorized activity as part of the companion care service authorization. According to the support plan, the recipient was also authorized to receive personal care assistance. Personal care assistance was authorized to maintain the recipient's hygiene and help with his personal care needs. Companion care was authorized to give the recipient meaningful days to visit places and make new friends. Meal preparation and washing dishes fall within the personal care assistance category and not within the authorized companion care, as described in the support plan. This claim was properly denied. Recipient No. 9, Claim 12: This claim was for 24 units of companion care service on May 14, 2008. The claim was adjusted, allowing three hours instead of the six hours claimed, based on a finding that the documentation did not support the number of units billed. The only documentation describing what was done in this six-hour period was "parks," with no additional detail or information to justify the amount of time claimed. With the absence of detail, AHCA reasonably found that a six-hour claim for "parks" was excessive. Respondent argued in its PRO that the activity is appropriate, and the number of units billed is in line with the service. Respondent presented no evidence to establish the facts or opinions argued in its PRO. Respondent's unsupported assertions are not evidence to refute the contrary finding that the claim was excessive. Recipient No. 14, Claim 1: This claim was for 16 units of non-residential support services on January 2, 2007. The claim was denied on the basis of insufficient documentation, as there was no daily progress note. Respondent argues that the weekly service log is sufficient documentation. The service log for the week including January 2, 2007, shows that non- residential support services were provided from 8:00 a.m. to 12 noon on three consecutive days--January 1, 2, and 3, 2007. No information is provided regarding the activities done each day. Instead, a single-block description is provided, presumably of all activities done over the three-day, 12-hour period. The description was: Get in order all of his money Get in order gift certificates [Illegible]ing money The support plan goals for non-residential support services for this recipient were to help the recipient learn the value of money, learn to make purchases, and pay for them. Respondent argues in its PRO that the activities summarized above for the three-day period are "geared toward the recipient's stated goals[.]" While that is apparently true, the summary is inadequate to justify the claim for four hours each day for a three-day period. As Petitioner notes in the audit, there should be daily progress notes specifying what was done each day. Indeed, daily progress notes are required by the Developmental Disability Waiver Services Coverage and Limitations Handbook (Waiver Handbook). See Waiver Handbook, Ch. 2-55, Non- Residential Support Services, Documentation Requirements, No. 5 ("Daily progress notes for each day services were provided."). Recipient No. 15, Claim 9: Respondent billed Medicaid for 32 units (eight hours) of companion care services on May 10, 2008. AHCA adjusted the claim to allow 14 units of service. AHCA denied 16 units of service because the documentation did not support the amount billed. Two units of service were denied for time spent doing laundry, an unauthorized activity for companion care. The service log showed that on May 10, 2008, companion care was recorded from 11 a.m. until 7 p.m., a total of eight hours. In addition, another four hours were logged for personal care services, described as shampoo, bathroom cleaning, bedroom cleaning, and laundry. The description of the companion care services for that day was "restaurant" and "laundry." Respondent argued in its PRO that the claim was directly connected to the goals for recipient no. 15, which include activities to reduce depression and avoid suicidal tendencies. However, Respondent failed to address the points made in the audit--that the documentation does not support the number of units of service claimed and that laundry is an authorized activity for personal care assistance, not companion care. Petitioner's auditor reasonably found that eight hours for "restaurant and laundry" were excessive, and, indeed, Petitioner was generous in allowing three and one-half hours for "restaurant," while disallowing only one-half hour billed as companion care for doing laundry. The claim was properly adjusted; Respondent offered no evidence or argument to the contrary. Recipient No. 16, Claims 3, 4, 5, 7, and 8: These claims were each for 12 units of companion care services on different days. Each of these claims was adjusted by subtracting one unit of service from the 12 units claimed, because the documentation showed that an unauthorized activity--feeding--was included. The applicable support plan authorized companion care services for the following goals: "Wants to have meaningful days and socialize as well as buy things of his interests; Wants to go to the library to get videos." The recipient was also authorized for personal care assistance provided by a different provider (not Respondent) to meet the following goal: "Wants to be helped with his personal care needs." Respondent argued in its PRO that the recipient needs to be fed through a bag and learn how to perform personal care, so these are activities for which he needs assistance. Respondent's argument, unsupported by any testimony or documentary evidence, misses the point. The recipient was indeed authorized to receive "help with his personal care needs," but the authorized service for that activity was personal care assistance, not companion care, to be provided by a different provider, not Respondent. Respondent failed to refute the finding that the claims included an unauthorized activity. Petitioner reasonably adjusted these claims by deducting one unit of service from each claim. Petitioner's Costs Petitioner presented an exhibit at hearing, updated after the hearing, setting forth its investigative and expert witness costs. Respondent did not object to or dispute the reasonableness of Petitioner's documented costs. Through the final hearing, Petitioner's total investigative and expert witness costs were $4,087.19. Respondent took the opportunity offered to respond or object to Petitioner's updated cost submittal, but Respondent's response did not actually respond or object to Petitioner's updated costs. Instead, Respondent asserted that an offset should be applied to reduce any award of Petitioner's costs by what would be, in effect, a discovery sanction. Respondent's request for an offset is based on the apparent fact that in pre-hearing discovery, counsel for Petitioner agreed to make AHCA's expert witness available for deposition in Tallahassee. Although the expert witness appeared for his deposition, he had not yet reviewed the case material because the file had not yet made its way into his hands. Counsel for Respondent traveled to Tallahassee for the deposition and for business of other clients. After the deposition, counsel for AHCA expressed his apologies, and although he could not commit, he stated he would attempt to get some cost reimbursement for Respondent. Apparently, that never happened. Respondent now seeks recovery of costs for attending a deposition that had to be rescheduled after AHCA's expert witness was better prepared. Even if Respondent had timely filed a motion shortly after this occurrence for costs imposed as a discovery sanction, Respondent offers no authority for ordering reimbursement of costs under these circumstances. Respondent could have subpoenaed the expert and the necessary documents for deposition; Respondent could have asked for entry of an order of pre-hearing instructions to impose requirements on expert witness discovery; Respondent took none of these steps. No subpoena was violated; no pre-hearing order was violated; no rule of civil procedure for discovery was violated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Juana Rodriguez, d/b/a Access Road, Inc.: To repay the sum of $159,741.86, for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; To pay interest on the sum of $159,741.86 at the rate of ten percent per annum from the date of the overpayment determination; To pay a fine of $1,000 for failure to furnish all Medicaid-related records within the requested timeframe; To pay a fine of $2,500 for the patterned violations of the requirements of Medicaid laws, rules, and provider handbooks; and To pay $4,087.19 to reimburse Petitioner for its costs. DONE AND ENTERED this 26th day of March, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2012.
The Issue Whether the Respondents were overpaid by Medicaid for radiology and nuclear medicine services provided to Florida Medicaid patients. The Agency for Health Care Administration (AHCA, Agency or Petitioner) asserts that the Respondents, Lazaro Plasencia, M.D., and Ana M. Elosegui, M.D., billed Medicaid for procedures they did not perform in violation of Medicaid policy, the Florida Administrative Code, and Florida Statutes. The Respondents maintain that because of ambiguities in Medicaid policy regarding reimbursement protocols for the radiology services at issue, the Respondents mistakenly believed in good faith that under the applicable Medicaid regulations and guidelines, Medicaid would reimburse the "maximum" fee allowable under the relevant fee schedule. The Respondents acknowledge that the "professional component" of the radiology services at issue was provided by a third-party physician specialist. The Respondents further assert that they are entitled to, at the minimum, payment of the "technical component" of the medically necessary radiological services that they provided to Medicaid recipients. The Petitioner seeks reimbursement from Dr. Plasencia in the amount of $196,129.52 and $122,065.08 from Dr. Elosegui.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. At all times material to the allegations of DOAH Case No. 07-2195MPI, the Respondent, Dr. Plasencia, was a licensed medical doctor in good standing with the State of Florida, license #ME49315, and was also a Medicaid provider, #0448125-00. Similarly, at all times material to the allegations of DOAH Case No. 07-2462MPI, the Respondent, Dr. Elosegui, was a licensed medical doctor in good standing with the State of Florida, license #ME85963, and was also a Medicaid provider, #2654636-00. Drs. Elosegui and Plasencia practiced medicine together in a shared office space in Miami, Florida. The Respondents were not members of a "group practice." The Respondents were individual providers who billed Medicaid separately, using their individual Medicaid provider numbers. The doctors performed services for Medicaid recipients and submitted the charges for those services to Medicaid. Medicaid has a "pay and chase" policy of paying Medicaid claims as submitted by providers. Audits performed by the Agency then, after-the-fact, reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines and pertinent rules. If more is paid to the provider than allowable, a recoupment against the provider is sought. In these cases, the Respondents conducted (or supervised) various tests including "Radiological and Nuclear Medicine" services for Florida Medicaid patients in a shared office setting. The services at issue in these cases were billed under the CPT procedure codes of series 70000 and 90000. The Petitioner has not challenged any procedure at issue as not "medically necessary." Moreover, the Petitioner does not dispute that the Respondents performed or supervised the "technical component" of the universe of the radiological services at issue. The "professional component" for the universe of the radiological services at issue in this proceeding was outsourced to third-party physicians. The Respondents contracted with the outside third-party physicians for the "professional component" services to read and interprete the radiological product. These third party physicians were not Medicaid providers, nor were they part of a Medicaid group provider that included the Respondents. When billing for the radiological services, the Respondents billed Medicaid for both the "technical" and "professional" components using the "maximum" fee set forth in the Fee Schedule. The Respondents knew or should have known that they had not performed a global service as they never performed or supervised the "professional" component of the services billed. The Petitioner performed an audit of the radiological claims for Dr. Plasencia for the dates of service July 1, 2001 through December 31, 2005. On December 1, 2006, the Petitioner issued a Final Audit Report that concluded Dr. Plasencia had been overpaid $196,129.52. Additionally, the Petitioner sought an administrative fine against Dr. Plasencia in the amount of $1,000.00. Similarly, the Petitioner performed an audit of the radiological claims submitted by Dr. Elosegui for the dates of service October 11, 2002 through December 31, 2005. On December 1, 2006, the Petitioner issued a Final Audit Report that concluded Dr. Elosegui had been overpaid $122,065.08. The Petitioner also sought an administrative fine against Dr. Elosegui in the amount of $1,000.00. In January 2005, the Fee Schedule applicable to CPT 90000 procedure code services was revised. The Fee Schedule specified a reimbursement amount for the "technical" component of the radiological services in the CPT 90000 code set. Prior to that time, there had been no reimbursable amount for the "technical component" performed separately from the "professional component." The Medicaid provider agreements executed between the parties govern the contractual relationships between these providers and the Agency. The parties do not dispute that those provider agreements, together with the pertinent laws or regulations, control the billing and reimbursement claims that remain at issue. The amounts, if any, that were overpaid were related solely to the radiological services billed under a global or inclusive manner that included the "professional" component within the amount claimed to be owed by Medicaid. The provider agreements pertinent to these cases are voluntary agreements between AHCA and the Respondents. The Fee Schedule adopted by the Petitioner dictates the code and reimbursement amounts authorized to be billed pursuant to the provider agreement. The Respondents performed or supervised the "technical components" for the radiological services billed to Medicaid. The Respondents did not perform the "professional component." For all of the 70000 series billing codes the components can be split and the "technical component" can be identified and paid separately. For these billing codes, the Respondents were given (or paid for) the "technical component" of the 70000 codes. Similarly, for the 90000 billing codes, for the "technical component" portion where it was identifiable and allowable, the Petitioner gave the Respondents credit for that amount. The "technical component" for the 90000 billing codes was not identifiable or allowable prior to 2005. Prior to the amendment to the Fee Schedule the 90000 billing codes were presumed to be performed in a global manner; i.e. the "professional component" and the "technical component" were done together by the Medicaid provider submitting the claim. That was not the factual case in these audits. Respondents were not authorized to bill the 90000 codes in the global manner as they did not perform the "professional component" of the services rendered. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid payments. The Petitioner administers the Medicaid program in Florida. Pursuant to its authority AHCA conducts audits to assure compliance with the Medicaid provisions and provider agreements. These “integrity” audits are routinely performed and Medicaid providers are aware that they may be audited. These “integrity” audits are to assure that the provider bill and receive payment in accordance with applicable rules and regulations. The Respondents do not dispute the Agency’s authority to perform audits such as the ones at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order of recoupment as set forth in the reports at issue. The final order should also impose an administrative fine against each Respondent in the amount of $1,000.00. DONE AND ENTERED this 1st day of April, 2008, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2008. COPIES FURNISHED: Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Robert M. Penezic, Esquire Broad and Cassel Post Office Box 14010 Fort Lauderdale, Florida 33302-4010 L. William Porter, II, Esquire Agency for Health Care Administration Fort Knox Executive Center III 2727 Mahan Drive, Building 3, Mail Stop 3 Tallahassee, Florida 32308-5403 Robert N. Nicholson, Esquire Broad and Cassel Post Office Box 14010 Fort Lauderdale, Florida 33302-4010
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing. this file is CLOSED. DONE and ORDERED on this the DR say of Mila. 2014, in Tallahassee, Florida. ZABETH DUDEK, fee — Agency for Health Care Administration Agency For Healthcare Administration V. Gary Marder D.O. C.1. No. 12-2625-000 Filed October 14, 2014 2:14 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Robert Antonie Milne. Esq., Assistant Attorney General Florida Bar No.: 622338 Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3713 Facsimile: (850) 922-6425 Robert.Milne@myfloridalegal.com Julie Gallagher, Esq., Julie. gallagher@akerman.com Akerman Senterfitt Suite 1200 106 Kast College Avenue Tallahassee, Florida 32301 Kelly Bennett, Chief Medicaid Program Integrity Finance and Accounting Health Quality Assurance Florida Department of Health Agency For Healthcare Administration V. Gary Marder 0.0. C.l, No. 12-2625-000 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail or other designated method on this the 7 A ot © S24. J Shoop, Esquire Agency Clerk State of Florida Agency tor Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 Agency For Healthcare Administration V. Gary Marder D.O. C.I. No. 12-2625-000 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH CASE NO: 14-2456MPI PROVIDER NO.: 000455900 VS. CAL NO,: £2-2625-000 NPUNO.: 1730117003 LICENSE NO: 084773 GARY L. MARDER, D.O, Respondent, / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, GARY L. MARDER, D.O. (SPROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1, The parties enter into this agreement for the purpose of memorializing the resolution of this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 000455900, and was a provider during the audit period. 3. In its Final Audit Report, dated October 7, 2013, the Agency notified PROVIDER. that a review of Medicaid claims performed by the Agency’s Office of (he Inspector General, Bureau of Medicaid Program Integrity (“MPI”), during the period of December 1, 2008, through May 31, 2011, indicated that certain claims, in whole or in part, were inappropriately paid by Agency for Health Care Administration v. Gary L. Marder, 0.0. C.L. No 12-2625-000 Settlement Agreement Page lofé Medicaid. The Agency sought repayment of this overpayment, in the amount of one hundred and fifty-four thousand five hundred and sixty-four dollars and six cents ($154,564.06). Additionally, the Agency applied sanctions in accordance with Sections 409,913(15), (16), and (17), Florida Statutes, and Rule 59G-9.070(7), Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of thirty thousand nine hundred and twelve dollars and eighty-one cents ($30,912.81) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code; and costs in the amount of three thousand, five hundred and fifty-five dollars and twenty cents ($3,551.20). The iotal amount due was one hundred and cighty-nine thousand, twenty-eight dollars and seven cents ($189,028.07). 4, In response to the audit report dated October 7, 2013, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to issuance of the FAR, the PROVIDER submitted additional documentation and clarifications to AHCA regarding the alleged overpayment and sanctions amount. Based on further review AHCA has revised the final overpayment to one hundred forty five thousand, four hundred dollars and twenty-five cents ($145,400.25). The Agency also imposed a sanction in the amount of six thousand dollars ($6,000.00) and assessed cost in the amount of three thousand, seven hundred fifty-one dollars and twenty cents ($3,751.20). The total amount due arising from this case is one hundred fifty-five thousand, one hundred fifty-one hundred dollars and forty-five cents ($155,151.45). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA agree as follows: Agency for Health Care Administration v. Gary L. Marder, D.O. C.I. No 12-2625-000 Settlement Agreement Page 2 of 6 6. 7. a. AHCA agrees to accept the payment set forth hercin in settlement of the after, fines and costs, arising from the above-referenced Audit. b. PROVIDER agrees to pay AHCA the sum of onc hundred fifty-five thousand, one hundred fifty-one dollars and forty-five cents ($155,151.45), The outstanding balance accrues at 10% interest per year. Within thirty (30) days of entry of the Final Order but by no later than December 10, 2014, whichever date is the last to occur, PROVIDER will make one payment of one hundred fifty-five thousand, one hundred fifty-one dollars and forty-five cents ($155,151.45). ce PROVIDER and AHICA agree that full payment, as set forth above, resolves and settles this case completely and releases both parties from any administrative or civil liabilities arising from the findings relating to the claims determined to have been overpaid as referenced in audit C.1. NO.: 12-2625-000, d. PROVIDER agrees that it shall not re-bill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the review in this case. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable - MS #14 2727 Mahan Drive, Bldg, 2, Ste-200 Tallahassee, Florida 32308 PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further Agency for Health Care Administration v. Gary L. Marder, D,O, C.J. No 12-2625-000 Settlement Agreement Page 3 of 6 notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10, The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11, This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 12, This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and AHICA other than as sel forth herein, No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 13. This is an Agreement of Settlement and Compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no nusunderstanding or misinformation shall be a ground for rescission hereof. Agency for Health Care Administration v. Gary L. Marder, D.O. C.h. No 12-2625-000 Settlement Agreement Page 4 of § 14, PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120,569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 15. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising owl of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. 16. The parties agree to bear their own attorney’s fees and, except those cost specified to be paid by the Provider in this settlement agreement if any. 17, This Agreement is and shall be deemed jointly drafted and written by all parties to it and shal] not be construed or interpreted against the party originating or preparing it. 18. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. Agency for Health Care Administration v. Gary L. Marder, D.O. C.1. No 12-2625-000 Settlement Agreement Page 5 of 6 49. This Agreement shall inure to the benefit of and be binding on cach party's successors, assigns, heirs, administrators, representatives and trustees. 20. All times stated herein are of the essence of this Agreement, ai. This Agreement shall be in full force and effect upon execution by the respective Dated: Wis, 2014 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan TD rive, Bldg. 3, Mail Stop #3 llahagsee, 1. 2308-5403 Dated: uf; 7. 2014 Dated: 16/ f, » 2014 pated: /C/S?, 2014 Require 3 Counset piss Sec : mu jee —— ome ‘Assistant Attomey General Agency for Health Care Administration v. Gary L. Marder, D.0. C4. No 12-2625-000 Settlement Agreement Page 6 of 6 (Page 1 of 9) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, RICK SCOTT ELIZABETH DUDEK GOVERNOR SECRETARY ene CLIZAOC IN UUWER GOVERNOR SECRETARY CERTIFIED MAIL No.: 7009 2820 0001 5675 2068 October 7, 2013 Provider No: 000455900 NPI No: 1730117003 License No.: OS4773 Gary L. Marder 9580 S. US Highway 1 Port St. Lucie, FL. 34952-4217 In Reply Refer to FINAL AUDIT REPORT C.l.: No. 12-2625-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period December 1, 2008, through May 31, 2011. A preliminary audit report dated October 15, 2012 was sent to you indicating that we had determined you were overpaid $145,400.25. Based upon a review of all documentation submitted, we have determined that you were overpaid $154,564.06 for services that in whole or in part are not covered by Medicaid. A fine of $30,912.81 has been applied. The cost assessed for this audit is $3,551.20. The total amount due is $189,028.07. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule . $9G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $30,912.81 for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. . This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Visit AHCA online at 2727 Mahan Drive, MS# 6 hitp://ahca.myflorida.com Tallahassee, Florida 32308 Te meaner ne CR Re ARO IR RR A NR NEAL ET RM I A ce tne A meena A eke tn HH eae a emer eT Se ge (Page 2 of 9) Gary L. Marder 000455900 C.I. No.: 12-2625-000 Page 2 Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fer, schedules, as, acomuleated jz. the, Madicridnglicxhaedkerks: billinabublstiatoar dbs and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATIONS) 1. Medicaid policy addresses the requirements for enrollment and participation in the Medicaid program. In order to bill for services provided by another practitioner (physician, ARNP, PA), that practitioner must be enrolled in Medicaid, and must also be enrolled as part of a group practice for which you are listed as the pay-to provider. The billing must reflect the Medicaid number of the treating practitioner. You billed and received payment for services performed by another practitioner who was not enrolled in Medicaid and/or not in a group with you at the time the services were rendered. This finding applies to pathology claims. Payment made to you for these services is considered an overpayment. 2. A review of your medical records revealed that some services rendered were erroneously coded on the submitted claim. The appropriate code was applied and the payment adjusted. The difference between the amount paid and the payment for the correct procedure code is considered an overpayment. 3. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment of an illness. You bitled and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims which were considered medically unnecessary were disallowed and the money you were paid for these procedures is considered an overpayment. 4. Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. 5. Medicaid policy addresses the type of pathology services covered by Medicaid. You billed and received payment for laboratory tests that were performed outside your facility by an independent laboratory. Payments made to you in these instances are considered overpayments. 6. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment. (Page 3 of 9) Gary L. Marder 000455900 C1. No.: 12-2625-000 Page 3 10. 1 — Tn order ta qualify as a hasis for reimbursement. Medicaid policy requires that records must be In order to qualify as a basis for reimbursement, Medicaid policy requires that records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Payments made to you in instances where the records submitted for review were non- contemporaneous, are considered overpayments. Medicaid policy requires a physician’s signature to substantiate the service billed. A review of your medical records revealed that in some instances, a rubber stamp was used in lieu of a physician’s written signature. Rubber stamp signatures must be initialed. The services that you billed and received payment for, in which a rubber stamp was utilized, are considered overpayments. Medicaid policy states that, to receive the physician 100% reimbursement, Advanced Registered Nurse Practitioners and Physician assistants must be supervised by the treating physician. Supervision is shown by the physician’s dated signature on the medical record. You billed Medicaid for services at the 100% reimbursement level when the medical record did not indicate that the service was supervised. Twenty percent of the reimbursement is considered an overpayment. Your records indicate instances of unbundling (using two CPT codes when one of these codes incorporates the elements of the other). The unbundled code has been denied. . As to Recipient #25: Medicaid requires a radiological physicist to be under the direct supervision of a physician (2010 Physician Services Coverage and Limitations Handbook, 2- 115). When Dr. Marder was out of the country he was not on the premises to provide direct supervision for these services. Medicaid requires indirect supervision by a physician for non- invasive radiology and nuclear medicine services (2010 Physician Services Coverage and Limitations Handbook, 2-112). Indirect supervision means that the physician must be reasonably available, so as to be physically present to provide consultation or direction in a timely fashion as required for appropriate care of the recipient. When Dr. Marder was out of the country, he was not available to provide indirect supervision for services. Dr. Marder was also unavailable to prescribe services for this recipient. CPT code 77401 is allowed once per patient per session regardless of the number of treatment areas. CPT code 77427 is billed per 5 treatments (not areas). CPT code 77336 is billed once per week. CPT code 77300 requires a prescription by the physician. Payments made to you for these services are considered an overpayment. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 388 claims was reviewed. For those claims in the sample, which have dates of service from December 1, 2008, through May 31, 2011, an overpayment of $15,169.48 or $39.09659794 per claim, was found. Since you were paid for a tota! (population) of 10,485 claims for that period, the point estimate of the total overpayment is 10,485 x $39.09659794 = $409,927.83. There is a 50 percent probability that the overpayment to you is that amount or more. (Page 4 of 9) Gary L. Marder 000455900 CE. No.: 12-2625-000 Page 4 We used the following statistical formula for cluster sampling to calculate the amount due the Agency: een NS Ua, —YB,y Where: N N E = point estimate of overpayment = F' b A, by 3,| U F = number of claims in the population = > B, isl 4, = total overpayment in sample cluster 8B, = number of claims in sample cluster U = number of clusters in the population N = number of clusters in the random sample N N Y = mean overpayment per claim= 5° A, / >)" B, eal get t = ¢ value from the Distribution of f Table All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $154,564.06 with a ninety-five percent (95%) probability that it is that amount or more. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. One mere A Ce en IS RE RU NER REMY HOOT IE BAS gR on ACF nee NTR ee ae (Page 5 of 9) Gary L. Marder 000455900 C.L.No.: 12-2625-000 Page 5 If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $189,028.07, which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements wil! be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed, You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa 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 ifa 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. rere mE nr he et A NER ET RE EMER NAHE PA Pe ANN (Page 6 of 9) Gary L. Marder 000455900 CI. No.: 12-2625-000 Page 6 Anv onestions von mav have ahout this matter should be directed to: Kris Creel. Investigator. Agency Any questions you may have about this matter should be directed to: Kris Creel, Investigator, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. AHCA Administrator Office of Inspector General Medicaid Program Integrity RO/KC/te Enclosure(s) Copies furnished to: Julie Gallagher Akerman Senterfitt Suite 1200 106 East College Avenue Tallahassee, FL 32301 Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) rr are rete seme mann AA A RP RE TE RATA RTA thE TPO RR RR UIA NRE neem A (Page 7 of 9) Gary L. Marder 000455900 CI. No.: 12-2625-000 Page 7 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS UNW 2 Ur ayia pays a es eee ee ee ee You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes, Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J, Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop # 3 Tallahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The request must be legible, on 8 % by 11-inch white paper, and contain: 1, Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. Anexplanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4, Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency, and A demand for relief. bad A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement, If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting ‘the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. 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 shall be conclusive and final. Fa rn ta eet ER RRS ERR AMI ARERR REE OCR NTRR “ur RSI ye IRAE cen i RRO A en ener reppin cee” (Page 8 of 9) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 000455900 - GARY L MARDER Overpayment Catculation Using Cluster Sampling by Recip Name Dates Of Service: 12/1/2008 through §/31/2011 Dre ek einintn ie meet: - Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Recip # ONA OHO DYAA WH = NNN NWUNNN MHA BBB Bo BENBERORBNRSestsZaeR Totals: 35 Using Overpayment per claim method Overpayment per sample claim: Point estimate of the overpayment: Variance of the overpayment: Standard error of the overpayment: Half confidence interval: Overpayment at the 95 % Confidence level: Overpayment run on 10/3/2013 Page 1 of 1 _ Ase, Rannin 1,462 Case ID: 35 $820,719.19 Confidence level: 10,485 {value No. Claims Total Dollars 8 $352.56 3 $138.52 3 $185.90 8 $315.58 6 $730.96 1 $42 18 3 $185.90 5 $203.85 4 $244.06 1 $62.78 7 $398.88 14 $1,817.12 8 $1,272.44 2 $1,122.26 5 $250.73 6 $373.84 9 $954.69 28 $2,703.53 5 $460.73 13 $814.85 3 $119.10 3 $185.90 8 $529 48 4 $26.61 188 $5,610.14 1 $42.18 2 $71 29 4 $338.74 10 $789.00 8 $342.15 2 $97.10 1 $42.18 5 $446.94 10 $513.45 3 $50.16 388 $21,805.75 $39,09659794 $409,927.83 $22,807 ,115,837.63 $151,020.25 $255,363.77 $154,564.06 NPI: 1730117003 49 OROR NNN 12-2625-000 95% 1.690924 Overpayment $86 63 $64.96 $54.96 $89.78 $513.47 $0.00 $135.68 $32.18 $54.96 $0.00 $40.01 $1,489.43 $1,107.15 $1,122.26 $138.09 $121.98 $789.43 $2,306 56 $394.21 $514.63 $62.78 $54.96 $274.80 $0.00 $4,484.14 $0.00 $0.00 $164.88 $560.18 $109.92 $0.00 $0.00 $284.22 $116.75, $10.48 $15,169.48 (Page 9 of 9) If you choose to make payment, please return this page along with your check to: Ae nn ae Maa TIAA Qanen A deniniotratian Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 The check must be made payable to: Florida Agency for Health Care Administration Provider Name: Gary L. Marder Provider ID: 000455900 MPI Case #: 12-2625-000 Total Due: $189,028.07 Check Number: # Any questions you may have about this matter should be directed to: Kris Creel, Investigator, telephone (850) 412-4600, facsimile (850) 410-1972. Payment for Medicaid Program Integrity Audit 121 recente (Page 1 of 1) \ i ! ; | j | | | | | | 80 that Wé can retum the card to you. §§ Attach this card to the back of the mallpiece, or on the front if space permits. GARY L. MARDER 9580 S. US HIGHWAY 1 PORT ST LUCIE, FL 34952-4217 C.1 #12-2625-000 KC-re Olan eos wows wel 16.00. 7 Lo! lz Restricted Delivery? (xtra Fea) O ves Mander fomeeyce wee) ____ 700% 2820 OO01 SL?5 20b8 \’ nt a ASO RD TE PS Form 3811, February 2004 Domestic Return Receipt 102895-02.0-1540 UniTED States PosTAL SERVICE Class aoe Postage & Fees Paid ise aoe ¥ ™N 8 oe x FLORIDA AGENCY FOR HOSGEICARE APSO TRATIOON dar o 2727 Mahan Drive, MS #6 @& s Tallahassee, Florida 32308 } Medical Unit Wyapereaf fe Affelpheyhfo dtp fbeeag hy gaffod gag] iD, MPU panty 1D Return Reosist for terchandise
Findings Of Fact 1. The letter disclosed the Respondent’s administrative and due process rights. 2. The Respondent has not disputed imposition of the sanction as set forth in the letter.
Conclusions THIS CAUSE concerns a request for hearing that the Agency for Health Care Administration (‘AHCA” or “Agency”) received pertaining to a Suspension from Participation letter the Agency issued to Respondent, Ayoade Idowu, a Medicaid provider, on October 7, 2011 (Exhibit A). On October 27, 2011, a Petition for Formal Administrative Hearing contesting the suspension was filed on behalf of the Respondent Ayoade Idowu (Exhibit B). On November 22, 2013, the Agency issued a Final Order terminating Respondent’s participation as a Medicaid Provider, thereby rendering the prior suspension moot (Exhibit C). Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the Guy of Yay. , 2014, in Tallahassee, Florida. ; Aas dL Walle Agency for Health Care Administration Filed May 8, 2014 1:40 PM Division of Administrative Hearings
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the aay of Stptember, 2014, in Tallahassee, Florida. Agency for Health Care Administration Final Order Invoice No. NH16752 Page 1 of 3 Filed October 3, 2014 11:44 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Peter A. Lewis, Esquire Peter A Lewis, P.L. 3023 North Shannon Lakes Drive Suite 101 Tallahassee, Florida 32309 palewis@petelewislaw.com (Via Electronic Mail) Bureau of Health Quality Assurance Agency for Health Care Administration (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting (Interoffice Mail) Jeffries Duvall, Esquire Assistant General Counsel Agency for Health Care Administration (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration (Interoffice Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order Invoice No. NH16752 Page 2 of 3 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by the designated method of delivery on this the i day of C Dla 2014. Richard J. Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3671 Final Order Invoice No. NH16752 Page 3 of 3
The Issue The issue is whether Respondent failed to maintain a service plan for each of four residents, in violation of the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. If so, an additional issue is the sanctions that should be imposed.
Findings Of Fact Respondent owns and operates an assisted living facility known as Izquierdo Home Care I. At all material times, Respondent was enrolled in the Medicaid program as a provider authorized to supply assistive living services to Medicaid recipients at Izquierdo Home Care I. At all material times, Respondent was subject to the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. The handbook imposed upon Respondent the duty to develop a service plan for each Medicaid recipient not less often than annually. On March 27, 2012, Petitioner's inspector conducted a site visit of Izquierdo Home Care I. At the time of the site visit, the facility had six beds, but only four residents. According to a letter from Petitioner dated March 27, 2012, and delivered to Respondent's representative at the time of the inspection, the following four residents were Medicaid recipients: E. C., R. R., J. H., and A. R. However, according to the questionnaire completed by Respondent's representative at the time of the inspection, only two of the four current residents were Medicaid recipients, although the questionnaire does not identify these residents. In fact, A. R. had been discharged from Izquierdo Home Care I in September 2011. At the hearing, Petitioner's inspector confirmed that Respondent had not billed Medicaid for services for A. R. after the date of discharge. The second resident whose Medicaid status is in question was identified, in Respondent's proposed recommended order, as E. C. Respondent contends in its proposed recommended order that E. C. was not receiving Medicaid at the time of the inspection. If the Proposed Recommended Order were the only notice to Petitioner of Respondent's claim that a second resident was not a Medicaid recipient, the Administrative Law Judge would ignore this assertion because it is not evidence, and, as a defense, it was raised too late. However, the questionnaire, which was admitted as one of Petitioner's exhibits, is evidence that two of the four residents were not receiving Medicaid at the time of the inspection. In assessing the evidentiary record in terms of whether it establishes a third Medicaid recipient, the Administrative Law Judge notes: a) Petitioner has alleged a violation concerning A. R., even though A. R. was no longer a Medicaid recipient at the time of the inspection; b) at hearing, Petitioner's inspector was readily able to read the "query" to confirm that Respondent had not submitted a Medicaid billing on account of A. R. after September 2011 (Transcript 49); and c) as discussed in the Conclusions of Law, Petitioner bears the burden of proof by clear and convincing evidence. Under these circumstances, Petitioner has proved only that two residents of the facility were Medicaid recipients at the time of the inspection. There is no dispute that current service plans for two Medicaid recipients did not exist at the time of the March 2012 inspection.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing a fine of $2000 against Respondent. DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2012. COPIES FURNISHED: Jeffries H. Duvall, Esquire Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Julia Arrendell, Qualified Representative 13899 Biscayne Boulevard North Miami Beach, Florida 33181 Elizabeth Dudek, Secretary Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Stuart Williams, General Counsel Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Richard J. Shoop, Agency Clerk Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403
Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part IT, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Notice of Intent to Deny and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 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 Petitioner’s application for licensure is DENIED. 6. In accordance with Florida law, the Petitioner is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Petitioner is advised of Section 408.810, Florida Statutes. 7. In accordance with Florida law, the Petitioner is responsible for any refunds that may have to be made to the clients. 8. 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 1 Filed September 17, 2012 9:38 AM Division of Administrative Hearings 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. ORDERED at Tallahassee, Florida, on this /~ day / , 2012. 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_capy of this Final Order was served on the below-named persons by the method designated on this / iy of fy 2012. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel William A. Sweat, Esq. 2018 South Florida Avenue Agency for Health Care Administration Lakeland, Florida 33803 (Electronic Mail) (U.S. Mail) Richard J. Saliba R. Bruce McKibben Informal Hearing Officer Administrative Law Judge Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issues in this case are whether Petitioner received Medicaid overpayments, and, if so, what is the aggregate amount of the overpayments.
Findings Of Fact The Parties Respondent, the Agency for Health Care Administration, is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner, The Doctor's Office, was a Florida corporation approved by the Agency to provide group Medicaid services. At all times relevant to this matter, Petitioner was owned entirely by non-physicians who employed salaried physicians to provide Medicaid services. Petitioner, at all times relevant to this matter, offered physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 371236P-00. Petitioner, pursuant to the specific terms in the contract with the Agency, agreed to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and Federal laws and regulations. Petitioner, pursuant to its contract with the Agency, agreed to only seek reimbursement from the Medicaid program for services that were "medically necessary" and "Medicaid compensable." The Audit In mid-1996, the Agency, pursuant to its statutory responsibility, advised Petitioner that it intended to audit Petitioner's paid Medicaid claims for the alleged medical services it provided between July 1, 1994 and June 30, 1996. In September 1996, the Agency conducted an initial audit site visit, and randomly selected 61 patient files for review. The complete patient files, provided by Petitioner, were reviewed by Sharon Dewey, a registered nurse consultant and Agency employee, as well as Dr. Solenberger, a physician consultant and Agency employee. In accordance with its procedure, the Agency determined that Petitioner had submitted a total of 580 claims for reimbursement relating to the 61 patient files and had received full payment from the Medicaid program for each claim. On March 3, 1997, the Agency issued a Preliminary Agency Audit Report (PAAR), and advised Petitioner that it had over-billed Medicaid and received an overpayment from the program. Shortly thereafter, the Agency auditors, Dr. Solenberger and Ms. Dewey, met with Frank Colavecchio, Petitioner's Corporate Representative, and discussed the Medicaid violations alleged in the review. During the meeting, the Agency requested Mr. Colavecchio to instruct Petitioner's staff physicians to review their records and provide a written rebuttal to the Agency's initial determinations. Within days, and prior to any further action, the Agency placed the audit on indefinite hold. The Agency decided to delay the audit until certain proposed legislation relating to peer review and the integrity of the Medicaid reimbursement program was enacted. Two years later, Section 409.9131, Florida Statutes, was enacted during the 1999 legislative session and became law. Shortly thereafter, in 1999, the Agency hired Dr. Larry Deeb, a board-certified, practicing pediatrician, to perform a peer review of Petitioner's practices and procedures. Dr. Deeb has performed similar medical records reviews for the Medicaid program since 1981 and possesses a thorough understanding of CPT coding and the EPSDT requirements. Dr. Deeb received the medical files provided by Petitioner, and reviewed each patient file in the random sample, including the medical services and Medicaid-related claim records. On November 11, 1999, Dr. Deeb completed his peer review of 564 of the 580 claims provided in the random sample and forwarded his findings to the Agency. Dr. Deeb advised the Agency that 16 reimbursement claims involved adult patients and he therefore did not review them. Utilizing Dr. Deebs findings, the Agency employed appropriate and valid auditing and statistical methods, and calculated the total Medicaid overpayment that Petitioner received during the two year audit period. On July 17, 2000, approximately four years after the original audit notification, the Agency issued its Final Agency Audit Report (FAAR). The Agency advised Petitioner that, based upon its review of the random sample of 61 patients for whom Petitioner submitted 580 claims for payment between 1994 and 1996, Petitioner received $875,261.03 in total overpayment from the Medicaid program during the audit period. Petitioner denied the overpayment and requested a formal administrative hearing. Following the initial commencement of the final hearing in this matter in December 2001, Dr. Deeb, again, reviewed the disputed claims and modified his opinion relating to 6 claims. Thereafter, the Agency recalculated the alleged overpayment and demanded Petitioner to pay $870,748.31. The Allegations The Agency alleges that specific claims submitted by Petitioner, which were paid by the Medicaid program, fail to comply with specific Medicaid requirements and therefore must be reimbursed. Since its inception, the Medicaid program has required providers to meet the Medicaid program's policies and procedures as set forth in federal, state, and local law. To qualify for payment, it is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with . . . state . . . law." Section 409.913(5)(e), Florida Statutes (1993). Medicaid manuals are available to all Providers. Petitioner, as a condition of providing Medicaid services pursuant to the Medicaid program, is bound by the requirements and restrictions specified in the manuals, and under the contract, is required to reimburse the Medicaid program for any paid claims found to be in violation of Medicaid policies and procedures. The evidence presented at hearing established that Petitioner frequently violated various Medicaid policies and procedures. First, Petitioner repeatedly failed to comply with Section 10.9 of the Medicaid Physician's Provider Handbook, (MPPH), and Sections 409.905(9), 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp. 1995, and 1996), Florida Statutes, which require all medical services to be rendered by, or supervised by a physician, and attested to by the physician's signature. Medical records reflecting services for paid claims must be physician signature certified and dated, or the services are not defined as physician's services. In addition, Petitioner routinely failed to correctly document the provision of certain physician's assistant (P.A.) Medicaid services that require the personal supervision of a physician or osteopath. See Chapter 1 of the Physician Assistant Coverage and Limitations Handbook, March 1995, and Appendix D (Glossary) in the Medicaid Provider Reimbursement Handbook, HCFA-1500 (HCFA-1500). In addition, Petitioner failed to comply with Medicaid regulations that require an approved physician to be present in the facility when certain P.A. services are delivered and to attest to it by signature within twenty-four hours of service. See Section 11.1 of the MPPH, effective July 1994, and Sections 409.905, and 409.913 (1993, 1994 Supp., 1995, and 1996 Supp.), Florida Statutes. The evidence presented at hearing also demonstrates that Petitioner repeatedly violated specific record keeping requirements located in Section 10.9 of the MPPH, Sections 10.6 and 11.5 of the Medicaid EPSDT Provider Handbook (EPSDT), and Sections 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp., 1995, and 1996), Florida Statutes. In addition, the Agency demonstrated that Petitioner occasionally failed to document support for the necessity of certain services or simply billed for services that were not medically necessary. As indicated, Medicaid policy limits a physician to bill only for services that are medically necessary and defines the circumstances and varying levels of care authorized. In fact, Section 11.1 of the MPPH, effective July 1994, provides in part: 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 . . . . The services in this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of all services in this handbook must be done by or under the personal supervision of a physician or osteopath . . . at any place of service . . . . Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. The manual further provides clear guidelines defining authorized services for reimbursement which Petitioner apparently overlooked. For example, the manual defines the four types of medical history exams that Medicaid providers may conduct, the nature of the problems presented, and the appropriate and authorized tests. The manual also identifies the varying degrees of medical decision-making complexity related to Medicaid services and provides instructions relating to the method of selecting the correct evaluation and management code for billing. Petitioner consistently violated coding restrictions. Moreover, the Medicaid policy manual also outlines the specific procedures and billing requirements necessary for seeking payment for medical services including the early periodic screening for diagnosis and treatment (EPSDT) services. Chapter 10 and 11 of the MPPH specifically state that services that do not include all listed components of the EPSDT are not defined as an EPSDT, and upon audit, the Agency re-calculated Petitioner's medical services at the appropriate procedure code. Stipulation Prior to the commencement of the hearing, the parties stipulated that certain paid claims were correctly determined by the Agency to be overpayments. Specifically, the parties agreed that portions of samples 1, 3, 14, 21, 28, 41, 46, 47, 51, 53, and 56 could not be claimed for reimbursement since lab services which are part of an office visit reimbursement and/or lab service fees performed by an independent outside lab are not permitted. In addition, the parties agreed that specific portions of samples 1, 13, 14, 27, 28, 33, 35, 43, 46, 47, 52, 53, and 55 could not be claimed since Modifier 26 billing, the professional component, is only appropriate when the service is rendered in a hospital and Petitioner's services were rendered in an office. Pediatric Sample With regard to the random sample of pediatric files, upon careful review, the evidence presented at hearing sufficiently demonstrates that Petitioner was overpaid the following amounts on the following paid claims for the following reasons: The prolonged physician's services billed to Medicaid were not documented as having been provided or medically necessary. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 1 1/18/1996 99354 $ 36.64 1 5/14/1996 99354 $ 36.64 13 9/25/1995 99354 $ 36.64 19 9/28/1994 99354 $ 39.50 21 12/18/1995 99354 $ 36.64 28 3/06/1995 99354 $ 36.64 42 6/04/1996 99354 $ 36.64 43 12/19/1994 99354 $ 36.64 47 9/28/1994 99354 $ 39.50 47 10/17/1995 99354 $ 36.64 51 4/05/1995 99354 $ 36.64 53 11/02/1995 99354 $ 36.64 56 5/01/1996 99354 $ 36.64 The level of care billed to and reimbursed by Medicaid at the 99215 office visit procedure code level was improper since the level of care provided was at the 99213 office visit procedure code level. Cluster Number Date of Service Overpayment 1 9/14/1995 $ 34.14 1 1/18/1996 $ 34.14 1 5/14/1996 $ 34.14 33 9/28/1994 $ 20.00 47 10/17/1995 $ 34.14 The level of care billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99214 office visit procedure code level. Cluster Number Date of Service Overpayment 53 5/31/1995 $ 21.69 The level of care billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 25 7/27/1994 $ 2.00 The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99203 office visit procedure code level. Cluster Number Date of Service Overpayment 35 5/11/1995 $ 37.96 51 12/08/1994 $ 15.00 55 11/21/1995 $ 37.96 58 9/22/1995 $ 37.96 The level of care that was billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 43 12/11/1994 ($ 3.00) credit The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the medical services provided and documentation supported an EPSDT visit. Cluster Number Date of Service Overpayment 53 2/06/1995 $ 16.53 The required components of the EPSDT were not documented as being performed at the office visit that had been claimed and paid as an EPSDT and therefore, the difference between the EPSDT payment received and the value of the procedure code for the documented level of office visit that occurred (i.e., 99214, 99213, 99212, 99211, or 99203), is deemed an overpayment. Cluster Number Date of Service Level of Visit Overpayment 1 7/28/1995 99213 $ 39.82 3 6/28/1995 99213 $ 39.82 5 3/03/1995 99203 $ 21.43 6 7/07/1994 99213 $ 5.00 10 8/17/1995 99212 $ 43.82 12 1/31/1996 99204 $ 0.00 14 5/31/1995 99213 $ 39.82 18 10/04/1994 99213 $ 5.00 18 1/29/1996 99214 $ 27.37 20 8/25/1994 99213 $ 5.00 21 12/11/1995 99214 $ 27.37 29 8/17/1994 99212 $ 9.00 Cluster Number Date of Service Level of Visit Overpayment 29 9/06/1995 99213 $ 39.82 40 7/25/1994 99203 $ 0.00 41 5/06/1996 99214 $ 27.37 46 9/19/1994 99213 $ 5.00 46 10/19/1995 99213 $ 39.82 47 11/02/1994 99213 $ 5.00 51 9/07/1995 99213 $ 39.82 53 7/10/1995 99213 $ 39.82 53 1/19/1995 99213 $ 39.82 59 5/02/1996 99203 $ 43.39 Adult Samples At hearing, Petitioner disputed all of the Agency's findings relating to patients over the age of 21 and objected to Dr. Deeb, a pediatrician, performing any review of their files. While Dr. Deeb is not the appropriate peer to review adult patient files, the following adult claims did not require substantive peer review and resulted in overpayment due to the stated reason: There were not any medical records in existence to indicate that any medical services were performed. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 2 2/20/1995 99215 $ 53.00 2 7/11/1995 99215 $ 59.14 2 8/09/1995 99215 $ 57.14 2 9/07/1995 99213 $ 23.00 2 10/11/1995 99213 $ 23.00 2 1/02/1996 99213 $ 23.00 2 3/22/1996 73560/Rad.Ex. $ 16.36 2 4/01/1996 99215 $ 57.14 2 4/05/1996 99213 $ 23.00 2 4/23/1996 99213 $ 23.00 15 2/16/1996 99213 $ 23.00 15 2/19/1996 99215 $ 57.14 16 5/14/1996 Blood Count $ 8.00 Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 16 5/14/1996 UA $ 3.00 16 5/14/1996 99215 $ 57.14 23 7/28/1994 99213 $ 23.00 23 5/09/1995 72069/26 Rad.Ex. $ 6.98 23 5/09/1995 72069/Rad.Ex. $ 17.45 23 10/20/1995 99213 $ 23.00 34 4/24/1996 99214 $ 35.45 57 11/17/1995 99215 $ 59.14 60 4/10/1996 99215 $ 57.14 61 5/22/1995 99213 $ 23.00 The medical records failed to contain the required physician's signature and date authenticating the fact that the services billed were performed by either P.A. Olsen or P.A. Avidon under physician supervision. The services provided by the non-physician employee were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Cluster Number Date of Service Proc. Code Pd./ P. Code Allowed Overpayment 2 6/30/1995 99215/99212 $ 36.14 2 7/20/1995 99215/99213 $ 34.14 2 7/28/1995 99215/99213 $ 34.14 2 9/05/1995 99215/99212 $ 36.14 8 4/17/1995 99205/99203 $ 35.96 17 3/27/1995 99205/99203 $ 35.96 23 5/09/1995 99215/99213 $ 32.14 23 6/09/1995 99215/99213 $ 32.14 34 4/23/1996 99205/99203 $ 35.96 The medical records failed to contain the required physician signature authenticating the fact that the services were provided by a physician. The services provided were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Procedure Code Cluster Number Date of Service Billed and Paid Overpayment 2 6/14/1995 99215/99211 $ 45.14 16 5/15/1996 99215/99211 $ 45.14 61 5/05/1995 99205/99204 $ 14.53 The provider improperly sought payment for lab services that were part of the office visit reimbursement and/or lab services performed by an independent outside lab. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 3/08/1996 UA $ 3.00 2 4/03/1996 UA $ 3.00 15 2/08/1996 UA $ 3.00 16 5/15/1996 Blood Count $ 8.50 16 5/15/1996 Blood Count $ 8.00 The provider improperly sought payment for Modifier 26 billings (professional component) which are only appropriate when the service is rendered in a hospital. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 2/17/1995 Radiologic exam $ 6.98 2 6/14/1995 Radiologic exam $ 7.20 8 4/17/1995 Tympanometry $ 9.00 16 5/13/1996 Radiologic exam $ 5.45 16 5/15/1996 Radiologic exam $ 6.98 In addition to the policy and procedural violations, Petitioner, in egregious violation of the Medicaid program, admittedly submitted Medicaid claims for the services of specialist physicians (such as an allergist, OB/GYN, podiatrist, psychologists, and ophthalmologists) not within its Provider group, collected Medicaid funds based on those claims, and reimbursed the respective specialist. While Petitioner's corporate representative, Mr. Colavecchio, was admittedly responsible for the coding and billing of the Medicaid services submitted for reimbursement, he was minimally aware of the Medicaid policy requirements and possessed limited working knowledge of CPT coding and EPSDT billing. In addition, Petitioner's employees, Dr. Keith Wintermeyer and Dr. Marcia Malcolm, were only moderately familiar with the CPT coding and EPSDT component requirements. They provided little input to Petitioner regarding CPT coding and the sufficiency of certain physician's services relating to EPSDT billing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency re-calculate the overpayment consistent with the Findings of Fact, and include only those identified violations in the cluster samples of the adult patient files, and issue a Final Order requiring Petitioner to reimburse, within 60 days, the Agency for the Medicaid overpayments plus any interest that may accrue after entry of the Final Order. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 14th day of February, 2003. COPIES FURNISHED: Susan Felker-Little, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Charles D. Jamieson, Esquire Ward, Damon & Posner, P.A. 4420 Beacon Circle West Palm Beach, Florida 33407 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 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 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The issues in the case are (1) whether the decision of the Agency for Health Care Administration (AHCA) to not select Little Havana Activities and Nutrition Centers of Dade County, Inc. (Little Havana), for the award of a contract for the provision of long-term care managed care services pursuant to AHCA Invitation to Negotiation Solicitation No. AHCA ITN 011- 12/13, entitled "Statewide Medicaid Managed Care--Long Term Care, Region 11" (ITN) was contrary to the AHCA's governing statutes, rules, polices or any applicable ITN specification, and, if so, whether such selection decision was clearly erroneous, contrary to competition, arbitrary, or capricious; whether Little Havana's response to the ITN was responsive; whether Little Havana was a responsible vendor; and (4) whether Little Havana's protest is barred for failure to submit the required protest bond.
Findings Of Fact AHCA was created by chapter 20, Florida Statutes, as the chief health policy and planning entity for the state of Florida. AHCA is the state agency authorized to enter into contracts with private entities for the provision of long-term managed care services to Medicaid enrollees under section 409, part IV, Florida Statutes (2012).1/ Long-term care services to be provided under these contracts include nursing facility care and services provided in assisted living facilities, hospice, and adult day care, along with other services specifically required by law. Section 409.966 requires AHCA to select a limited number of eligible plans to participate in the state-wide Medicaid managed care program, and further requires AHCA to conduct separate procurements for 11 statutorily-prescribed regions in Florida. § 409.966(2), Fla. Stat. Separate and simultaneous procurements were to be conducted in each of the 11 regions. On June 29, 2012, AHCA issued the ITN, which solicited responses from vendors seeking to provide long-term care services to Medicaid enrollees in each of the 11 regions. The only procurement at issue in this proceeding is for Region 11, which comprises Miami-Dade and Monroe counties. On July 13, 2012, AHCA issued Addendum No. 1 to the ITN. On July 30, 2012, AHCA issued Addendum No. 2 to the ITN. On August 7, 2012, AHCA issued Addendum No. 3 to the ITN. On August 17, 2012, AHCA issued Addendum No. 4 to the ITN. These addenda included the questions posed by the vendors concerning the ITN and AHCA's responses. The ITN included instructions, 67 specific questions, certifications, and attestations. No protests of the terms, conditions or specifications of the ITN were filed within 72 hours of the release of the ITN or the addenda. In accordance with section 409.981(2)(k), the ITN stated that AHCA would issue a minimum of five and a maximum of ten contract awards for Region 11. Section 409.981(2)(k) requires that a least one of the contracts must be with a provider service network if any provider service network submitted a responsive bid. The ITN stated that AHCA, at its sole discretion, would determine the number of contracts to be issued. The ITN provided: The State has established certain requirements with respect to responses submitted to competitive solicitations. The use of "shall," "must," or "will" (except to indicate futurity) in this ITN, indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the ITN requirements, provides an advantage to one respondent over another, or has a potentially significant effect on the quality of the response or on the cost to the state. Material deviations cannot be waived. The words "should" or "may" in this ITN indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such desirable feature will not in itself cause rejection of a response. Little Havana is a Florida not-for-profit corporation with its principal place of business at 700 Southwest Street, Miami, Florida, 33130. Little Havana, American Eldercare, Sunshine, United, Coventry, Molina, Amerigroup Florida, Humana, Freedom Health, Inc. (Freedom), Wellcare of Florida, Inc. (Wellcare), Universal Healthcare, Inc. (Universal), Simply Health Care Plans, Inc. (Simply), Advantage Florida Health Plan, Inc. (Advantage), and Florida Healthcare Plus, Inc. (Florida Healthcare) each submitted a response to the ITN. Little Havana and all Intervenors timely submitted their responses to the ITN. American Eldercare was the only Provider Service Network (PSN) to submit a response to the ITN. AHCA appointed 16 evaluators to evaluate and score the vendor responses for Region 11. There were six "core evaluators," Evaluators 1 through 6. Specialty evaluators, Evaluators 7 through 16, scored in such areas as clinical services, quality management, compliance history, information technology, and financials. The evaluators were qualified to perform the evaluations. AHCA's decision to use the number of evaluators it used was reasonable. The ITN established the following evaluation criteria that would be used by evaluators when scoring each vendor's response: mandatory criteria; financial stability; review of provider comments; past performance evaluation; cost proposal; and technical response evaluation. After the evaluations were completed, AHCA tabulated the total scores awarded by each of the evaluators for each vendor and ranked the vendors. AHCA's process for calculating the final vendor rankings in Region 11 was as follows. The scores from Evaluators 7 through 16 for each vendor were compiled, and AHCA calculated an average based on the number of evaluators who scored each particular question. Those averages were then added to the scores for each of the Evaluators 1-6. This combination of scores represented each vendor's "total score" for each core evaluator. The vendor's total scores for Evaluators 1 through 6 were ranked in order from the highest to the lowest by evaluator. The rankings for each vendor were added, then divided by six to determine average rank. In Region 11, the top seven vendors were invited to negotiate. AHCA selected the seven highest-ranking vendors, American Eldercare, Sunshine, United, Coventry, Humana, Molina, and Amerigroup Florida to enter into negotiations for a contract. Based on AHCA's tabulations of the evaluators' scores, Little Havana's ranking was the eighth highest among the vendors. AHCA did not select Little Havana for negotiations. On January 15, 2013, AHCA issued its Bid Proposal Tabulation for the ITN, and noticed its intent to award contracts to the following vendors: American Eldercare, Sunshine, United, Coventry, and Amerigroup Florida. In addition to identifying those vendors to which AHCA intended to award contracts, the Bid Proposal Tabulation identified the final scoring evaluation ranking of each scored vendor as follows: Molina, 1.00; American Eldercare, 2.17; Humana, 4.00; United, 4.33; Coventry, 5.17; Sunshine, 6.33; Amerigroup Florida, 6.67; Little Havana, 7.50; Universal, 9.50, Wellcare, 9.67; and Simply, 9.67. On January 15, 2013, Little Havana filed its notice of intent to protest AHCA's intended contract awards. The formal written protest was due to be filed within ten days of the filing of the notice of intent to protest. § 120.57(3)(b), Fla. Stat. The tenth day after the filing of the notice of intent to protest fell on Saturday, January 26, 2013; thus, the formal written protest was due to be filed on Monday, January 28, 2013. Fla. Admin. Code R. 28-106.103. On January 25, 2013, Little Havana filed with AHCA, by facsimile transmission, a formal written protest, challenging AHCA's decision to select other vendors, to the exclusion of Little Havana, for negotiation and contract awards. AHCA received the copy of the protest and bond on January 25, 2013. The protest which Little Havana transmitted to AHCA included a copy of the protest bond required to be submitted pursuant to section 287.042(2)(c). On January 25, 2013, Little Havana sent the original formal written protest and the original protest bond to AHCA by Federal Express. Federal Express did not deliver the original protest and bond to AHCA until January 29, 2013, one day after the deadline for filing the protest and bond. In order to have standing to be awarded a contract, Little Havana's reply to the ITN must be responsive. The ITN established mandatory criteria as a threshold for determining whether vendor replies would be responsive, including a "signed Attachment K, Required Statements, as required in Attachment C, Special Conditions, Section C.46, Other Required Documentation." The ITN provided that "responses failing to comply with all mandatory criteria will not be considered for further evaluation" and would be considered non-responsive. ITN Section C.46 requires the vendor to certify that it currently operates as one of the following: health maintenance organization (HMO), long-term care provider service network, exclusive provider organization, accountable care organization, or other insurer that meets the ownership and financial requirements of a long-term care provider service network. Attachment K of the ITN contained the certification that the vendor currently operates as an HMO and stated: I hereby certify my company currently operates as one (1) of the following: ? HMO Health Maintenance Organization (HMO) and possess a current Florida Certificate of Authority and Health Care Provider Certificate (641 Part III) or a Florida Certificate of Authority and a Limited Health Care Provider Certificate (641.2018 and 641 Part III) in at least one (1) Florida county. Attachment K required the vendor to check the box for the plan that it was currently operating and required the signature of the vendor's qualified representative. Because of the time frames for program implementation2/ and the human and financial scale of the procurement, the purpose behind the ITN requirement that vendors currently operate as an HMO or other eligible plan is to ensure that vendors are experienced enough to hit the ground running and avoid start-up issues. The attestations and certifications are important to AHCA program integrity, and there are a number of attestations required in the course of business between AHCA and managed care organizations. These attestations include verifications regarding the accuracy, validity, and completeness of encounter data, billing, and fraud and abuse reportings. AHCA cannot validate every detail in each submission by the contractors, so AHCA relies upon attestations to validate that submittals are complete, accurate, and conform to the parameters of the attestation. In its response to the ITN, Little Havana checked the box in Attachment K certifying that it currently operates as an HMO and possessed a current Certificate of Authority and Health Care Provider Certificate, but did not check any other option that it currently operated as another type of eligible plan. Manuel Marrero, Chairman of the Board for Little Havana, signed the certification that Little Havana was currently operating as an HMO; however, he had no knowledge whether Little Havana was operating as an HMO at the time of its response submittal. Little Havana had a Certificate of Authority from the Florida Office of Insurance Regulation and a Health Care Provider Certificate from AHCA. Although Little Havana was authorized to operate as an HMO, at the time of the submittal of its response to the ITN, Little Havana was not currently operating as an HMO. Little Havana had no income from its HMO. Little Havana has never had a single enrollee in its HMO; has never paid a claim as an HMO; is not accredited as an HMO; has never billed any person for participation in its HMO, and has never provided any service to any patient as an HMO. Little Havana serves clients through the Nursing Home Diversion Program administered by the Department of Elder Affairs and intends to transfer those clients into its new HMO if it is awarded a contract pursuant to the ITN. In the responses to the ITN, AHCA took the certifications and attestations of the vendors to be complete and accurate. After the initiation of the bid protest by Little Havana, AHCA learned that Little Havana was not currently operating as an HMO at the time it submitted its response to the ITN. Had AHCA been aware that Little Havana was not currently operating as an HMO at the time Little Havana submitted its response to the ITN, AHCA would have deemed Little Havana's response as non-responsive and would not have scored its response. Had AHCA known that Little Havana was not currently operating as an HMO at the time of its ITN response, AHCA would have considered Little Havana not to be a responsible vendor for untruthfully certifying in Attachment K that it was currently operating as an HMO. The determination of whether a vendor is responsible is dependent on the vendor's integrity and the agency's ability to trust that the vendor will act in the state's best interests and adequately perform the contract. The truthfulness of an attestation is one component to the consideration of whether a vendor is responsible. If a vendor is found not to be responsible, AHCA would not contract with that vendor. Attachment E-1-A of the ITN required the vendors to make the following attestation: I hereby certify that no modification and/or alteration has been made to the forms, narrative and/or instructions contained in Attachment E-1-A, Submission Requirements and Evaluation Criteria Components and that the response adheres to the Agency's prescribed response allowances for response narrative and attachments. The attestation form stated: IN THE EVENT THE AGENCY DETERMINES THE RESPONDENT HAS MODIFIED AND/OR ALTERED ATTACHMENT E-1-A, SUBMISSION REQUIREMENTS AND EVALUATION CRITERIA COMPONENTS, AND/OR HAS OTHERWISE CIRCUMVENTED THE AGENCY'S PRESCRIBED ALLOWANCES FOR RESPONSE SUBMISSION, THE AGENCY WILL REJECT THE RESPONSE. Little Havana's response contained the attestation that it had not modified or altered Attachment E-1-A, Submission Requirements and Evaluation Components. As part of its response to question 67 of the ITN relating to Little Havana's provider network, Little Havana was to submit two forms, which were to be downloaded from an AHCA website as part of the ITN. The forms included an embedded scoring formula, which would automatically calculate the number of points to be awarded and assign point totals based on the data filled in by the vendors. Little Havana did not download and use the forms as prescribed in the ITN. Little Havana altered or modified the ITN forms in that Little Havana did not use the forms, but developed and used its own forms. The purpose of Question 67 was to determine whether the vendors had an adequate provider network. The ITN required the vendors to provide a list of currently contracted network providers and copies of letters of agreement or letters of intent from providers who intend to join the network. The question further directed: The respondent shall: Follow the instructions in Exhibit 1, Regional Contracts and Agreements Completion Instructions; Complete Exhibit 2, Network Contracts and Agreements--Facility Services; and Complete Exhibit 3, Network Contracts and Agreements--Non Facility. Question 67 further stated: "Response must include Exhibits 2 and 3 referenced above and no maximum attachments. Exhibits 2 and 3 to Question 67 were electronic Excel spreadsheets which were to be accessed and downloaded from the AHCA website as part of the ITN. Each exhibit was preceded in the ITN with two pages of "Completion Instructions" followed by spreadsheets. The ITN repeatedly made clear that responding vendors (referred to in the ITN as "Respondents") were to use the prescribed Excel spreadsheet forms to provide the requested information. Specifically, the Completion Instructions stated: Respondents to this ITN must complete Exhibit 2, Network Adequacy--Facility Services and Exhibit 3, Network Adequacy-- Non Facility within this attachment. Failure to provide the information requested will affect the overall scoring of the response, as specified in Attachment E, Part II, Evaluation Criteria. * * * EXHIBIT 2, NETWORK ADEQUACY--FACILITY SERVICES: Using Table 1-LTC Provider Qualifications and Network Adequacy Requirements in Attachment D-II, Core Contract Provisions, Exhibit 7, Item I., as a reference, the Respondent shall complete Exhibit 2, Network Adequacy--Facility Services, within this attachment. The Respondent shall list on this form all facility service providers with which the Respondent has a signed agreement or contract with to serve the populations covered in Attachment D-II, Core Contract Provisions. * * * EXHIBIT 3, NETWORK ADEQUACY-NON-FACILITY: Using Table 1-LTC Provider Qualifications and Network Adequacy Requirement in Attachment D-II, Core Contract Provisions, Exhibit 7, Item I., as a reference, the Respondent shall complete Exhibit 3, Network Adequacy--Non-facility Services, within this attachment. The Respondent shall list on this form all non-facility service providers in which the Respondent has a signed agreement or contract with to serve the populations covered in Attachment D-II, Core Contract Provisions. Any question whether the vendors were required to use these specific forms was eliminated in the answers to several questions asked by the vendors and published as part of Addendum 2 to the ITN: Question 521: Please provide Attachment E-1 in an editable format such as Microsoft Word or Excel. Answer: The Agency has provided the version of the document which respondents are to utilize. See http.//ahca.myflorida.com/Procurements/index .shtml. * * * Question 526: We have begun documenting the Agency-provided response forms. The formatting appears to create challenges when trying to match the response with the evaluation criteria because the column spacing is not locked. Will the Agency consider alternative submission formats? Answer: No. Little Havana failed to utilize AHCA's prescribed electronic forms to input information as required by Question 67 of the Attachment E-1-A, Submission Requirements and Evaluation Criteria and, instead, created its own altered version of AHCA's prescribed forms. In creating its own forms, Little Havana changed and/or omitted certain portions of the required forms. The forms created by Little Havana did not include AHCA's embedded scoring formulas; thus, Little Havana's forms did not show the number of points that should be awarded and did not assign point totals for the information supplied by Little Havana. Little Havana's forms, which looked similar to AHCA's electronic forms, did not include all of the listed categories. Little Havana omitted some provider categories and doubled up on others. The ITN stated how the responses to Question 67 would be scored: Two (2) points will be awarded per facility/non-facility for having a signed contract, letter of agreement or letter of intent. The evaluator will review all attached documentation, as required above, to ensure the information entered by the Respondent in Exhibits 2 and 3 are accurate. A total of 100 points is possible per county (20 maximum for facility, 80 maximum for non-facility). Overall scores (listed as REGION XX FINAL SCORE on the bottom of Exhibit 3 have been converted to fall between the standard evaluations scores 0 and 5 based on the combined Facility/non- facility raw scores. The points from the combined spreadsheets are converted to the following: No score = 0 Score greater than 0 but less than or equal to 0.20 = 1 Score greater than 0.20 but less than or equal to 0.40 = 2 Score greater than 0.40 but less than or equal to 0.60 = 3 Score greater than 0.60 but less than or equal to 0.80 = 4 Score greater than 0.80 = 5 The final score that represents the combined facility and non-facility provider scores will be used in Attachment E, Part II, Evaluation Criteria. The combined final raw score for the combined facility and non-facility providers was then weighted by 25 for the final scoring. The maximum final scoring for Question 67 was 125 points. Evaluators 1 through 6 evaluated the responses to Question 67. During a meeting of the evaluators and purchasing staff prior to the commencement of the evaluations, Kelly Walsh, Evaluator 4, asked what the evaluators were supposed to do if a vendor listed a service provider on the forms for Question 67 but did not provide the documentation to support the listing of the service provider. She was told to flag the lack of documentation and make a note of it. During the evaluation process, Ms. Walsh told AHCA procurement staff that Little Havana had not filled out the totals on the spreadsheet and asked AHCA procurement staff how she was supposed to evaluate Little Havana's response to Question 67. Ms. Walsh was told to score the response to Question 67 to the best of her ability. Although Ms. Walsh reviewed the supporting documentation of the other vendors for Question 67, she used the score from the spreadsheets without adjusting the score if no supporting documents were provided. Phyllis Davis, Evaluator 3, reviewed Little Havana's response to Question 67 and saw that Little Havana had not used the forms that the ITN required. She understood that the forms were self-scoring, meaning that the form had an embedded formula that would score the data supplied by the vendors on the form and that she was to take the score on the form as the score for the vendor. When she originally evaluated Little Havana's response to Question 67, she had left the score for Little Havana blank because there were no scores listed on the forms. After the evaluation, Ms. Davis was called back and told that she had not scored Question 67. At that time, Ms. Davis manually calculated Little Havana's score, using the instructions in the ITN. Princilla Brown-Jefferson, Evaluator 5, saw that Little Havana's responses to Question 67 did not have the scores tabulated on the forms submitted by Little Havana. During the evaluation, she asked an AHCA procurement staff member whether the vendors' responses on the forms were to be automatically scored based on the information put on the forms by the vendors. She was told that the forms would be self-scoring. Because Little Havana's forms did not have scores, Ms. Brown-Jefferson gave Little Havana a zero for Question 67. Keith Young, Evaluator 1, participated in the development of the ITN. He, along with Cliff Schmidt, developed the forms that would be used by the vendors in responding to Question 67. Mr. Young understood that the forms had an embedded formula which would create the scores for Question 67 based on the information provided by the vendors on the forms. He also understood that if the documentation submitted by the vendors did not support the form-generated score that he would have to manually deduct points and recalculate the score. During the evaluation, Mr. Young saw that Little Havana had not used the forms with the embedded formulas, and when he brought the failure to use the forms to the attention of AHCA procurement staff, he was told to do the best that he could in scoring Little Havana's responses. He returned to his evaluation and reviewed the forms submitted by Little Havana. His review showed that Little Havana had not listed all the provider services that were listed in the ITN forms. He calculated the score for Little Havana using the instructions in the ITN. The other core evaluators gave Little Havana five points for Question 67. Thus, they must have calculated the scores manually. On the financial evaluation criteria, Evaluator 16, Ryan Fitch, who is a certified public accountant (CPA), scored Little Havana as follows: ten points out of 20 available points for Part A, stability; 20 points out of 20 available points for Part B, projections; ten points out of 20 available points for Part C, required accounts; 20 points out of 20 available points for Part D, required accounts; and 20 points out of 20 available points for Part E, required accounts. The ITN provided Part A be scored with a weighted factor of 50 percent; Part B to be scored with a weighted factor of 25 percent; Part C to be scored with a weighted factor of three percent; Part D to be scored with a weighted factor of 15 percent; and Part E to be scored with a weighted factor of seven percent. After applying Evaluator 16's scores to the weighted factors for Parts A through E, Evaluator 16 scored Little Havana's Financial Information Evaluation Criteria a total of 14.7 points out of 20 available points. Little Havana presented the testimony of Ronald Finkelstein as its expert on the financial evaluation. Mr. Finkelstein disagreed with only two aspects of Mr. Fitch's evaluation: the calculation of the operating margin ratio and the start-up fund analysis. Mr. Finkelstein did not state that Mr. Fitch incorrectly performed his analysis, but did state that any differences between his analysis and Mr. Fitch's analysis were reasonable and resulted from the application of subjective professional judgment--wherein two CPA's could reasonably differ on the interpretation of financial statements. The operating margin was one of six financial measures calculated in Part A. Even if that ratio was recalculated in accordance with Mr. Finkelstein's analysis and a score assigned to it, the points that Little Havana received for the Part A evaluation of its financial statements would not have changed. Mr. Finkelstein challenged Mr. Fitch's characterization of Little Havana' ability to fund its start-up fund at Part C of the financial evaluation, as "questionable" rather than "likely." Little Havana's surplus start-up projections identified a total of $1.1 million that would be needed to fund that account for three months: $142,165 in November, 2013, $477,512 in December 2013, and $481,847 in January 2014. These amounts appear on Little Havana's financial pro formas on the line item designated "administrative expenses." The majority of the costs Little Havana would incur in the first three months are for medical expenses of $5.195 million, $13.547 million and $13.655 million, respectively, or a total of over $33 million. Neither Little Havana, in preparing its proposal, or Mr. Finkelstein, in analyzing it, included all of the operating expenses in sizing the start-up fund. Mr. Finkelstein was of the opinion that the failure to include these operating expenses in Little Havana's projections for funding its start-up fund were not fatal, because the contract, if awarded to Little Havana, would generate sufficient revenue, paid in advance at the beginning of each month, to pay all of the operating expenses. However, Mr. Finkelstein overlooked the clear statement in the ITN that the start-up fund must be in the form of cash or liquid assets, excluding the revenues from Medicaid payments. The revenues that Little Havana would receive, if it were awarded a contract, would be Medicaid revenues. Mr. Finkelstein noted that Little Havana had $8.4 million in unrestricted cash available for a start-up fund. However, the $8.4 million would not cover the $33 million Little Havana would need for its start-up fund. Question 1 concerned plan accreditation, was worth a maximum of ten points, and required vendors to "provide documentation of current accreditation by a nationally recognized accrediting body of the Managed Care Plan that will be providing services outlined in this ITN." The ITN specified the following evaluation criteria: For the Managed Care Plan that will provide services under this ITN, whether the respondent has: full accreditation by a nationally recognized accrediting body e.g., accredited by NCQA, full two-(2) year accreditation for URAC, of three (3) accreditation for AAAHCA; or partial/conditional health accreditation (e.g., provisional for NCQA, conditional or provisional for URAC, or one (1) year or six months for AAAHC; or denied accreditation The scoring scale for Question 1 was provided in the ITN: 5 points for full accreditation; 3 points for partial/conditional accreditation; 0 points if accreditation denied or no accreditation; 5 additional points for full accreditation with NCQA. In Addendum 2 of the ITN, a vendor posed this question: "For Respondents who are new entrants into the market, would AHCA award full credit for this question [Question 1] for those Respondents whose affiliated companies have current accreditations?" AHCA answered: "No. Points will be awarded to respondents who are accredited at the time of the submission of the response." Thus, it is clear that points would not be awarded if the parent company rather than the vendor submitting the response. Amerigroup Florida stated in its response to the ITN that it was a wholly-owned subsidiary of Amerigroup Corporation. In its response to Question 1, Amerigroup Florida stated: Amerigroup maintains the following accreditations and certifications: Full 3-year accreditation by Accreditation Association for Ambulatory Health Care (AAAHC)--Amerigroup Florida Full 3-year accreditation by NCQA of 8 Disease Management (DM) Patient and Practitioner Oriented Programs--Amerigroup Corporation Full 3-year certification by CMS for our special needs program (SNP) model of care on recommendation from NCQA--Amerigroup Corporation Amerigroup Florida further stated: Amerigroup earned a second 3-year Patient and Practitioner Oriented NCQA accreditation in 2009 for out national DM programs. In Florida, we currently manage 16,659 Medicaid and Medicare LTC equivalent members in DM (omitting the TANF/CHIP members)[.] Evaluators 1, 2, 5, and 6 awarded Amerigroup Florida the additional five points for having full accreditation with NCQA. Evaluator 1 based his awarding of the five points on Amerigroup Corporation's having achieved a second three-year NCQA accreditation in its disease management program; Amerigroup Corporation, presumably through Amerigroup Florida, currently manages 16,000 Medicare and Medicaid long-term care members in disease management programs in Florida; and his understanding that Amerigroup Florida's enrollees would enjoy the benefits of the NCQA-accredited disease management services. Evaluator 2 awarded the additional five points for full NCQA accreditation because she did not distinguish between Amerigroup Florida and Amerigroup Corporation. She understood that a disease management program is a component of a managed health care plan, and she saw that Amerigroup had a full three- year NCQA accreditation for its disease management program and felt that equated to full accreditation. Evaluator 5 did not know the difference between Amerigroup Florida and Amerigroup Corporation. She thought that the references to the NCQA accreditation referred to Amerigroup Florida. Evaluators 3 and 4 did not award Amerigroup Florida any additional points relating to full accreditation with NCQA. The evaluation of Little Havana's response to Question 1 suffers a similar flaw. Little Havana's response stated: [Little Havana] received its certificate of authority to operate an HMO on April 9, 2012. Therefore, it is has not yet obtained accreditation as a health maintenance organization by a nationally recognized accrediting body. It intends to obtain NCQA accreditation within the time frame required by the Florida Statutes. [Little Havana], however, is currently accredited by the nationally recognized Accreditation Commission for Health Care, Inc. [ACHC] for its home health operations. A copy of the accreditation is attached. ACHC does not accredit managed care plans, including HMOs. The accreditation that Little Havana has from ACHC is for home health services Evaluators 1, 4, and 6 awarded Little Havana zero points for Question 1. Evaluators 2, 3, and 5 awarded Little Havana five points for having a national accreditation. If Little Havana had been awarded a contract, it would have provided the services through its HMO, which did not have a national accreditation. The points awarded to Little Havana for Question 1 were clearly erroneous and contrary to the ITN evaluation criteria. Question 11 was worth a maximum of 15 raw points, and stated: The respondent shall provide information regarding whether it is based in the State of Florida, as defined in s. 409.966(3)(c)3, F.S., are conducted by staff in-house or through contracted arrangements, located in the State of Florida. The evaluation criteria for Question 11 provided that the vendor would receive five points if it had its principal office in Florida and no parent of joint venture organization outside of Florida and five points if all functions were performed in Florida. An additional five points would be awarded if the vendor met both the requirements of having its principal office in Florida and performing all its functions in Florida. Little Havana's response to Question 11 indicated that Little Havana had always been a not-for-profit corporation incorporated in Florida, had it principal office in Florida, and performed all functions in Florida. Evaluator 6 failed to give Little Havana the additional five points for meeting both criteria of a principal office in Florida and performing all functions in Florida. His failure to award the additional five points was contrary to the ITN and clearly erroneous. Question 13 provided: The respondent shall state whether, in the past seven (7) years, it has voluntarily terminated all or part of a contract (other than a provider contract) to provide health care services, has had such a contract partially or fully terminated (with or without cause), has withdrawn from a contracted service area, or has requested a reduction in enrollment levels. The evaluation criteria for Question 13 provided that five points would be awarded for "no voluntary termination of all or part of a contract and no service area withdrawals." Zero points would be awarded "for any voluntary termination/withdrawals." United responded that it had withdrawn its Medicaid presence in two county markets within the past seven years due to available funding, medical trends, and lack of essential hospital or provider services. Evaluators 1 and 2 awarded United five points for the portion of the ITN response dealing with whether there had been any voluntary withdrawals from service areas. The awarding of these points was clearly erroneous and contrary to the evaluation criteria of the ITN. Question 14 provided: The respondent shall state whether there is any pending or recent (within the past seven years) civil criminal or administrative litigation against the respondent (to include respondent's affiliates and subsidiaries and its parent organization and that organization's affiliates and subsidiaries). If there is pending litigation or recent litigation against the respondent, describe the contract that is being litigated (if applicable), the damages being sought or awarded and the extent to which adverse judgment is/would be sought or awarded and the extent to which adverse judgment is/would be covered by insurance or reserves set aside for this purpose. One of the evaluation criteria was the "extent to which actual and anticipated judgments are not covered by insurance or reserves." The vendor would receive five points if there were no litigation; four points if sought or awarded damages covered by insurance or reserves; and zero points if not covered. Another of the evaluation criteria for Question 14 was "[t]he extent to which actual and anticipated litigation involves allegations of criminal misconduct (defined as dereliction of duty; or unlawful or improper behavior) as described in the complaint or other documents filed in the case. The vendor would receive five points if no criminal litigation that resulted in ad [sic] adverse outcome" and zero points would be awarded "if completed litigation involved criminal or intentional misconduct that resulted in an adverse outcome." Question 14 was evaluated by only two evaluators, Evaluators 12 and 13. They each awarded Amerigroup Florida four points for damages, which were covered by insurance or reserves, and five points for having no criminal litigation. Amerigroup Florida stated in its response to the ITN that in the past seven years there had been no criminal litigation against it, its parent corporation, or its affiliates. Amerigroup Florida stated that it had been involved in eight cases in which resolutions had been reached with no admission of liability and that these resolutions had been covered by either insurance of adequate reserve funds. Its response indicated that all pending litigation was covered by either insurance or reserves. Amerigroup Florida did divulge that Amerigroup Corporation had been involved in a qui tam action and stated: In August 2008, Amerigroup settled all claims related to a civil judgment against it in a qui tam action styled as United States of America and the State of Illinois, ex rel. Cleveland A. Tyson v. Amerigroup Illinois, Inc. and Amerigroup Corporation, U.S. District Court for the Northern District of Illinois, Eastern Division, Case No. 02-C-6074 (the "Litigation"). The Litigation, filed in 2002 by Mr. Tyson, a former employee of Amerigroup's former Illinois subsidiary, alleged that Amerigroup and its former Illinois subsidiary submitted false claims under the Medicaid program by discouraging or avoiding the enrollment of pregnant women and other recipients with special needs. The settlement is neither an admission of liability by Amerigroup nor a concession by the United States and State of Illinois that their claims were not well founded. Rather, the agreement states that the parties reached a full and final settlement to avoid the delay, uncertainty, and expense of further litigation. * * * EXTENT THAT JUDGMENTS ARE COVERED BY INSURANCE OR RESERVES. Sufficient insurance and reserves are maintained to cover all actual or anticipated judgments or settlements. In the Tyson case filed in 2002 and described above, existing available and unregulated funds at Amerigroup Corporation and financing proceeds were utilized to pay the settlement. The evaluation criteria in the ITN stated that five points would be awarded if there were no criminal litigation. Amerigroup Florida, its parent company, and affiliates did not have any criminal litigation in the past seven years. Thus, the awarding of five points by each of the evaluators was consistent with the evaluation criteria set forth in the ITN. The evaluation criteria stated that the evaluators were to determine the extent that actual and anticipated judgments were not covered by insurance or reserves and four points would be given if the sought or awarded damages were covered by insurance or reserves. Little Havana argues that because the settlement in United States ex rel Tyson v. Amerigroup Illinois and Amerigroup Corporation, Inc., 488 F. Supp. 2d 719 (N.D. Ill. 2007) was covered in part by financing that Amerigroup Florida should have been awarded zero points. The awarding of four points for this category is not inconsistent with the ITN evaluation criteria. The Tyson case was resolved by settlement rather than by judgment. The opinion in the Tyson was issued on March 13, 2007, and the parties in the Tyson case settled the case in 2008. In the Pre-Hearing Stipulation filed by the parties, Little Havana contends that the following errors were made in the evaluation of Question 15: "Evaluator 12 awarding Amerigroup Florida 3 points on a component of Question 15 and Evaluator 13 awarding United 15 points on Question 15." Little Havana did not address these alleged errors in its proposed recommended order. Question 15 required the following: The respondent shall state whether it is currently or has recently (within the past seven (7) years) been the subject of a criminal or civil investigation by a state or federal agency. If yes, provide an explanation with relevant details and the outcome (if applicable). If the outcome was against the respondent, respondent shall provide the corrective action plan implemented to prevent such future offenses. The respondent shall include information for the respondent as well as the respondent's affiliates and subsidiaries and its parent organization and that organizations' affiliate and subsidiaries. Respondents are not required to include information regarding EEO investigations that did not result in a cause finding, unless those investigations are ongoing. The evaluation criteria for Question 15 provided: [Item] 1. The number of criminal or civil (noncriminal investigations by any governmental agency or component, thereof) investigations of the parent, affiliates, subsidiaries or respondent resulting in an adverse determination to be defined as a civil or administrative sanction, fine, or penalty or criminal conduct or withhold of adjudication following a plea agreement or trial. [Item] 2. The extent to which the investigation of the parent, affiliate, subsidiaries or respondent resulting in an adverse determination. [Item] 3. The extent to which the corrective action plan effectively addressed the issue resulting in an adverse determination. [Item] 4. The extent to which the respondent, subsidiaries, affiliate or parent is currently under investigation by any law enforcement agency, any governmental agency or any component thereof, that will not be resolved prior to the award of the resulting Contract. * * * This section is worth a maximum of 20 raw points with each of the above components being worth a maximum of 5 points each as outlined below. For Item 1: 5 points for none; 4 points for one (1); 3 points for two (2) not involving respondent directly; 2 points for two (2) that included respondent; 0 for any exceeding above limits. For Item 2: 5 points if no investigations or no adverse determinations; 0 points for any other set of circumstances. For Item 3: 5 points for no investigations or corrective action that addressed all deficiencies; 0 points for no or no effective corrective action plan. For Item 4: 5 points for no known, ongoing investigations; 4 points for one (1); 0 points for any more than one (1). In response to Question 15, Amerigroup Florida identified one civil investigation involving it, which was settled, and some investigations involving affiliate companies, two of which involved cause findings by the Equal Employment Opportunity Commission (EEOC) and which were settled. Based on Amerigroup Florida's response to Question 15, Item 1, Evaluator 12 awarded zero points and Evaluator 13 awarded three points. Evaluator 12 conceded error in awarding zero points because the two cause findings by the EEOC did not involve Amerigroup Florida, meaning that Amerigroup Florida should have been awarded three points, the same number of points awarded by Evaluator 13. The awarding of three points by Evaluator 13 was consistent with the ITN evaluation criteria. In its response to Question 15, Amerigroup Florida stated that there was one investigation with a corrective action plan that addressed the deficiency. No evidence was presented that the corrective action plan did not address the deficiency. Based on Amerigroup Florida's response to Question 15, Evaluators 12 and 13 each awarded Amerigroup Florida five points.3/ The award of these points was consistent with the evaluation criteria for Question 15. In scoring United's response, Evaluator 13 awarded five points each for Items 1, 2, and 3, and Evaluator 12 award zero points for those items. Evaluator 13 reasonably concluded that there were no investigations that resulted in adverse determinations based on the wording of the evaluation criteria. There was some civil litigation listed in response to Question 14, but those were not based on investigations by a state or federal agency. Evaluator 13's award of five points for Item 2 was based on his interpretation of adverse determinations not to include settlements. His interpretation was reasonable. For Item 3, Evaluator understood that there were no adverse determinations; thus, there would have been no need for corrective action plans. His award of five points for Item 3 was reasonable. The parties have stipulated that even if all points were deducted from United as argued by Little Havana, United would still be ranked among the top seven vendors. The parties have stipulated that even if all point adjustments sought by Little Havana are made, Sunshine would still be ranked among the top seven vendors. The parties have stipulated that even if all point adjustments sought by Little Havana are made, Coventry would still be ranked among the top seven vendors. Little Havana did not present any evidence that AHCA's decision to award seven contracts instead of eight was contrary to AHCA's rules or policies, the statutes governing AHCA, or the specifications to the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Little Havana's petition for failure to demonstrate that it was a responsive and responsible vendor who has standing to bring the protest. DONE AND ENTERED this 15th day of May, 2013, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2013.
