The Issue Whether the Agency for Health Care Administration (Agency or AHCA) is entitled to recover certain Medicaid funds paid to Lee Memorial Health System, d/b/a Lee Memorial Hospital (Respondent or Lee Memorial), for services provided to undocumented aliens: between January 1 through December 31, 2006, as alleged in AHCA’s Amended Final Audit Report, dated July 25, 2014 (DOAH Case 14-4171); and January 1 through December 31, 2007, as alleged in AHCA’s Final Audit Report, dated March 12, 2015 (DOAH Case 15-3271).
Findings Of Fact THE PARTICIPANTS Lee Memorial was, at all relevant times, an enrolled Medicaid provider authorized to receive reimbursement for covered goods and services provided to Medicaid recipients. As an enrolled provider, Lee Memorial’s participation in the Florida Medicaid Program is subject to the terms of the Medicaid Provider Agreement. The Florida Medicaid Program requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to aliens. As indicated, the Agency is the single state agency responsible for administering or supervising the administration of the Florida Medicaid Program (Medicaid). § 409.901(15), Fla. Stat. PRELIMINARY: FLORIDA MEDICAID PROGRAM Section 409.901(16), Florida Statutes, provides that the Medicaid program is “authorized under Title XIX of the federal Social Security Act which provides for payments for medical items or services, or both, on behalf of any person who is determined by the Department of Children and Families, or, for Supplemental Security Income, by the Social Security Administration, to be eligible on the date of service for Medicaid assistance.” The Medicaid program is jointly funded by the federal government and the individual states that have elected to participate in the program, of which Florida is one. Federal payments to the states for a portion of the cost of Medicaid are referred to as federal financial participation (FFP). AHCA administers the Medicaid program. AHCA is authorized to make payments to Medicaid providers for medical assistance and related services under Title XIX of the Social Security Act. However, in order to receive Medicaid assistance, the Department of Children and Families (DCF) must determine the eligibility of applicants for that assistance. Pursuant to section 409.902(1), DCF has adopted Florida Administrative Code Rule 65A-1.715 which addresses Medicaid eligibility for aliens. This rule provides: Aliens who would be eligible for Medicaid but for their immigration status are eligible only for emergency medical services. Section 409.901(10) F.S., defines emergency medical conditions. The Utilization Review Committee (URC) or medical provider will determine if the medical condition warrants emergency medical services and, if so, the projected duration of the emergency medical condition. The projected duration of the emergency medical condition will be the eligibility period provided that all other criteria are continuously satisfied. Emergency services are limited to 30 consecutive days without prior approval. For continued coverage beginning with the 31st day prior authorization must be obtained from the Agency for Health Care Administration (Medicaid Program Office). [Emphasis added]. The eligibility period for alien recipients is also described in rule 65A-1.702, which states: (2) Date of Eligibility. The date eligibility for Medicaid begins. This was formerly called the date of entitlement. The date of eligibility includes the three months immediately preceding the month of application (called the retroactive period). Eligibility for Medicaid begins the first day of a month if an individual was eligible any time during the month, with the following exceptions: * * * (c) Coverage for individuals eligible for the Emergency Medicaid for Aliens program begins the first day of a covered emergency and ends the day following the last day of the emergency medical situation. [Emphasis added]. DCF is performing an administrative function, solely to determine if the alien is eligible to receive medical assistance. DCF does not determine the duration of the emergency medical condition. DCF does not make a clinical medical determination regarding any patient because it does not have medical professionals to verify the information received. DCF has the dates of eligibility, but AHCA determines which bills are paid. AHCA relies on licensed medical physicians to determine the duration of the emergency medical services. Undocumented aliens do not qualify to receive full Medicaid benefits. As detailed in Agency handbooks, the aid is limited to the treatment of an emergency medical condition up to the point that condition has been alleviated. According to section 409.902(2), Medicaid eligibility is restricted to U.S. citizens and lawfully admitted noncitizens who meet the criteria provided in section 414.095(3), Florida Statute.4/ The criteria mean that undocumented or illegal aliens are generally not eligible for Medicaid assistance. All of the claims in dispute in this case involve payments on behalf of undocumented noncitizens who will be referred to herein as "aliens." As an exception to the general rule, episodic eligibility is available to an alien who is either pregnant or seeking "services [which] are necessary to treat an emergency medical condition." § 409.902(2)(b), Fla. Stat. "The eligibility of . . . a recipient [who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services] is limited to the period of the emergency, in accordance with federal regulations." § 409.904(4), Fla. Stat. (emphasis added). An alien is eligible for medical assistance only if he has an "emergency medical condition" requiring "emergency medical services"--and then only for those services "necessary to treat [the] emergency medical condition" that are provided during the "period of the emergency," the conclusion of which terminates the alien's eligibility. The term "emergency medical condition" (EMC) is defined in section 409.901(10)(a) as: A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: Serious jeopardy to the health of a patient, including a pregnant woman or a fetus. Serious impairment to bodily functions. Serious dysfunction of any bodily organ or part. Section 409.901(11) provides the following definition of “emergency services and care”: [M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable laws, by other appropriate personnel under the supervision of a physician, to determine whether an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician which is necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital. Section 409.904(4) provides: A low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services. The eligibility of such a recipient is limited to the period of the emergency, in accordance with federal regulations. Section 409.905(5) has, since 2005, consistently provided that AHCA shall pay for “all covered services provided for the medical care and treatment of a recipient” admitted as an inpatient by a licensed physician to a licensed hospital. However, covered payments can be determined by the patients’ physical condition. AHCA is authorized to “conduct or cause to be conducted . . . reviews, investigation, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, . . . in the Medicaid program and shall report the findings of any overpayments in audit reports as appropriate . . . . Medical necessity determination requires that service be consistent with symptoms or confirmed diagnosis of illness or injury under treatment and not in excess of the patient’s needs.” § 409.913(2), Fla. Stat. Section 409.913(1)(e) defines “overpayment” to mean “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” As found in section 409.913(1)(a)1, “abuse” means “[p]rovider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards of health care.” Further, under section 409.913(5), a Medicaid provider “is subject to having goods and services that are paid for by the Medicaid program reviewed by an appropriate peer-review organization designated by the agency. The written findings of the applicable peer-review organization are admissible in any court or administrative proceeding as evidence of medical necessity or the lack thereof.” AHCA has authority to “adopt any rules necessary to comply with or administer ss. 409.901-409.920 and all rules necessary to comply with federal requirements.” § 409.919, Fla. Stat. Florida Administrative Code Rule 59G-4.160 provides that all enrolled hospital providers must comply with the provisions of the Florida Medicaid Hospital Services Coverage and Limitations Handbook. As found on page 2 through 7 of this handbook: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Dialysis is considered an emergency service. [Emphasis added]. Rule 59G-5.020 provided for the use of the Florida Medicaid Provider Handbook. On page 3 through 22 under the heading, “Emergency: Medicaid for Aliens,” it provides: Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. All claims must be accompanied by documentation of the emergency nature of the service. Exceptions are labor, delivery, and dialysis services. These are considered emergencies and are payable without documentation when the emergency indicator is entered on the claim form. [Emphasis added]. CURRENT DEVELOPMENTS In 2009, the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), conducted a “Review of Florida’s Medicaid Payments for Emergency Services to Undocumented Aliens” (review). The review was directed to AHCA for the purpose of determining “whether AHCA’s billing for emergency medical services to undocumented aliens in the State of Florida complies with applicable Federal statutes and CMS’ regulations.” One of the review’s findings was that “AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency.” CMS recommended that “AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Federal Fiscal Years 2005, 2006, and 2007 and re-determine allowability of these claims utilizing the required Federal criteria” and that AHCA “promptly implement the necessary system edits so that services provided as emergent care [could] be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs.” In September 2010, the Department of Health and Human Services, Office of Inspector General, published its “Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens” (report). The report described existing internal controls at AHCA that needed to be improved in order to assure that “all claims for services provided to undocumented aliens are for conditions that the State agency defines as emergency services.” RN Ryder explained that AHCA’s internal controls, mainly the computer program, prevented the reviewers from adjusting a claim’s length of stay to the point where the emergency condition had been alleviated. Rather, the computer would only allow for the approval or denial of a claim. AHCA’s response to the report provided: The Agency’s contracted quality improvement organization began reviewing all requests for Medicaid reimbursement of inpatient emergency services for undocumented aliens on July 1, 2010. These reviews determine the point at which the emergency no longer exists, consistent with federal regulations and deny Medicaid reimbursement for the remainder of the inpatient stay. The Agency is also undertaking a retrospective review of all inpatient alien claims from July 2005 through June 30, 2010, to determine point of stabilization. Any payments made in error will be recouped, and the federal share will be adjusted on the Form CMS-64. The retrospective reviews will begin October 1, 2010. In August 2012, health care providers, including Lee Memorial, filed a Petition for Determination of Invalidity of Non-Rule Policy. This rule challenge, known as Bayfront I, ended with the December 12, 2012, Final Order that AHCA’s use of “the ‘point of stabilization’ standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them.” As such, AHCA discontinued reliance on the “stabilization standard.” In October 2014, health care providers, including Lee Memorial, filed a second Petition for Determination of Invalidity of Non-Rule Policy or In the Alternative for Determination of the Invalidity of a Rule. This rule challenge, known as Bayfront II, ended with the April 20, 2015, Final Order5/ that AHCA, having provided notice that it was going to start enforcing it statutes and rules, did not change “an interpretation or way of applying a statute or its rules. It is just starting to enforce them, as they are written, after years of neglecting to enforce them.” See Bayfront Med. Ctr., et al. v. AHCA, Case No. 14-4758, FO at 69 (Fla. DOAH Apr. 20, 2015). PROCESS One method the Agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's MPI. MPI is responsible for reviewing providers to assure that paid claims for services rendered were in accordance with the applicable rules, regulations and handbook(s). MPI looks to ensure that the provider is enrolled, the recipient is eligible, the service billed is covered, and the service is billed appropriately. As an example: An alien is in need of medical care, emergent or otherwise. The alien applies through DCF to become eligible for medical services, and is deemed eligible. An EMC arises, and the alien immediately presents to a duly enrolled Medicaid Provider, a health care facility of some type.6/ The alien is admitted as an inpatient on day one, and emergency health care services are provided. The EMC is alleviated as of day three, yet the alien remains in the health care facility for ten more days, receiving medical services, but not of the emergent type. The alien is discharged from the facility on day The facility bills the Medicaid program for 13 days of service. It is not uncommon for the alien’s eligibility to be determined after the hospitalization has ended, and the provider is seeking to cover its costs. PEER REVIEW When a claim was presented for peer review, the peer reviewers were directed to base the review on the standards governing emergency Medicaid for Aliens under state and federal laws, rules, and regulations. The peer reviewers had three issues to determine: whether an EMC existed, the length or duration of the emergency services (when the EMC was alleviated), and whether there were sufficient medical documentation/records to perform a medical review of the rendered services. The peer reviewers were all Florida-licensed physicians, either allopathic or osteopathic, who were matched by specialty or subspecialty to the claims they were reviewing. Each physician testified as to his or her medical or osteopathic education, background and training. Petitioner offered each physician as an expert, and each was accepted as such. The physicians were trained by their peer review organization on the statutes and rules regarding emergency Medicaid for aliens. The physicians then applied the standards contained in the statutes and rules with their education, training and experience to determine whether an EMC existed, the date on which the EMC was alleviated, and whether there were sufficient medical records upon which to make those determinations. SPECIFIC CLAIMS TO DOAH CASE NO. 14-4171 Adam Berko, D.O, a Board-certified family practitioner (a/k/a general practitioner), credibly testified regarding the following claim: Claim (Patient) 3, an 18-year-old male, presented to Lee Memorial’s emergency room on December 5, 2006, complaining of shortness of breath, chest pain, body aches and abdominal pain. He was diagnosed with acute renal failure and leukocytosis with bandermia. Patient 3 was discharged from the hospital on December 14, 2006. Dr. Berko credibly testified that Patient 3’s EMC had been alleviated as of December 9, 2006. Mark Kanarek, M.D., a Board-certified pediatric physician credibly testified regarding the following claims: Claim (Patient) 4, an 11-year-old female, presented to Lee Memorial’s emergency room on December 6, 2006, with abdominal pain and emesis (vomiting). It was medically necessary to admit Patient 4. An x-ray was taken which showed a subacute intestinal obstruction secondary to adhesions. A follow-up x-ray on December 7, showed there was a resolution of the small bowel distention. By December 8, Patient 4 was having regular bowel movements, which signified no further obstruction. She remained in the hospital until December 10, 2016; however, when Patient 4’s bowel obstruction was alleviated on the 8th, the EMC was alleviated. Claim (Patient) 21, a four-year-old male with Down’s syndrome presented to Lee Memorial’s emergency room on July 18, 2006, with a fever following a diagnosis of leukemia. It was an emergent condition for which hospitalization was necessary. Patient 21 continued to have fever spikes through July 23, 2006, which placed the child at a continued risk for life-threatening sepsis. The blood cultures returned as negative and the child was fever-free. Patient 21 remained in the hospital until July 26, 2006, however when the patient’s fever broke, on the 23rd, and the blood cultures returned as negative, the EMC was alleviated. Michael Phillips, M.D., a Board-certified internist credibly testified regarding the following claims: Claim (Patient) 5, an 86-year-old female, presented to Lee Memorial’s emergency room on April 11, 2006, with nausea, vomiting and dehydration. Given Patient 5’s age and condition, it was medically necessary to admit her. Patient 5 received IV fluids, which were stopped on April 12, 2006. As such, on April 12, Patient 5’s EMC was alleviated, and she was discharged on April 13, 2006. Claim (Patient) 8, a 31-year-old male presented to Lee Memorial’s emergency room on October 6, 2006, complaining of weakness and dizziness since that morning. Patient 8 was found to have new onset diabetes, after having lost approximately 47 pounds in the preceding four or five months. The admitting diagnosis was “syncope and collapse,” but without mention of a loss of consciousness. There was discussion regarding the signs of the significant weight loss. Patient 8 was discharged on October 12, following his receipt of insulin,7/ oral hypoglycemics8/ and education for his diabetic condition. Patient 8 had “a chronic medical condition that required treatment, but again, it wasn’t something that required immediate emergency care.” There was no EMC. Claim (Patient) 11, a 26-year-old male with a history of testicular cancer, presented to Lee Memorial’s emergency room on August 29, 2006, for his fifth cycle of chemotherapy. Patient 11 was admitted to a regular nursing floor for his scheduled chemotherapy treatment. Patient 11 was discharged on September 4, 2006. Patient 11 did not have an EMC nor did he receive any emergency services; rather, he had a scheduled medical treatment. Claim (Patient) 27, a 43-year-old female presented to Lee Memorial’s emergency room on July 9, 2006, with complaints of nausea, vomiting, diarrhea and chills. She had a two-month history of abdominal pain, nausea, vomiting, and diarrhea, and was diagnosed as having colitis. Patient 27 was admitted to Lee Memorial, had an abdominal scan and was treated with IV infusions. She did not require immediate surgery or any emergency services during the admission. Patient 27 did not receive any emergency services. She was discharged on September 4, 2006. Steve Beiser, M.D., a Board-certified internist credibly testified regarding the following claim: a. Claim (Patient) 13, a 28-year-old male was admitted to Lee Memorial on October 9, 2006, for an elective surgery. Patient 13 underwent an anterior mediastinal germ cell tumor resection and was discharged on October 14, 2006. Patient 13 did not receive any emergency services. Bruce Shephard, M.D., a Board-certified obstetrician and gynecologist, credibly testified regarding the following claim: Claim (Patient) 18, a 23–year-old female, presented to Lee Memorial’s emergency room on March 3, 2006, with complaints of being unable to void or have a bowel movement, abdominal pain, and pelvic pain. She was admitted on March 3, and her EMC presented on March 8, when she underwent surgery. Patient 13 was discharged on March 9. The EMC was alleviated on March 8, 2006. SPECIFIC CLAIMS TO DOAH CASE NO. 15-3271 Dr. Berko credibly testified regarding the following claim: a. Claim (Patient) 7, a 52-year-old male, presented to Lee Memorial’s emergency room on November 30, 2007, with complaints of epigastric pain, anemia and alcohol abuse. During his December 1, 2015, deposition (Petitioner’s Exhibit 21), Dr. Berko testified there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records. Dr. Berko was able to review the material and render his opinion via a January 23, 2016, Case Detail Report (CDR). Although Respondent did not object to the admission of Petitioner’s Exhibit 66, the CDR which contained Dr. Berko’s peer review is hearsay. There was no direct credible testimony regarding Patient 7, and no finding of fact is made with respect to Patient 7. Dr. Kanarek credibly testified regarding the following claims: Claim (Patient) 4, an eight-year-old female, presented to Lee Memorial with bone pain, fever and a refusal to walk on December 26, 2007. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records and Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 65, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 4, and no finding of fact is made with respect to Patient 4. Claim (Patient) 12, a 17-year-old male, was admitted to Lee Memorial on January 17, 2007, for a mediport placement, bone marrow biopsy on January 18, and the initiation of chemotherapy. (Patient 12 had been diagnosed with undifferentiated sarcoma with metastasis to the lungs.) There was no EMC for Patient 12, but rather a planned hospitalization for his cancer treatment. Following his chemotherapy, Patient 12 was discharged on January 22, 2007. Claim (Patient) 24, a six-year-old Down’s syndrome male with leukemia, was admitted to Lee Memorial on October 11, 2007, with fever and pancytopenia. He was discharged on October 15, 2007, after he had been fever-free for 48 hours on October 14. Dr. Kanarek determined that Patient 24’s EMC was alleviated on October 14. Claim (Patient) 27, a two-year-old male, was presented to Lee Memorial’s emergency room on August 5, 2007, following a near drowning event which required cardiopulmonary resuscitation. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties stipulated that Respondent was able to provide the medical records. Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 67, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 27, and no finding of fact is made with respect to Patient 27. Claim (Patient) 40, a seven-year-old male, presented to Lee Memorial’s emergency room on November 26, 2007, with a one- week history of left-sided facial swelling, following a tooth extraction. Although the child had been given oral antibiotics following the tooth extraction, that course of treatment failed, and his facial swelling and pain increased. When hospitalized, Patient 40 was started on IV antibiotics, and by November 28, 2007, his blood culture was negative, he remained afebrile, and his facial swelling had subsided. The EMC was alleviated on November 28, 2007. Patient 40 was discharged on December 10, 2007. Claim (Patient) 44, a 13-year-old male, presented to Lee Memorial’s emergency room on August 13, 2007, with a two and one-half month history of weight loss, increased thirst and urination, and a blood glucose of 534. He was admitted to the hospital, given IV normal saline bolus, started on insulin, and received diabetic instruction. Patient 44 did not present with an EMC; he presented with new onset diabetes. Dr. Kanarek credibly testified that Patient 44 never exhibited any signs of diabetic ketoacidosis, an imminently life-threatening condition, and he never required intensive or emergent care. Patient 44 was discharged on August 17, 2007. Thomas Wells, M.D., a Board-certified surgeon and family practitioner, who engages in emergency medicine, family practice and surgery, credibly testified regarding the following claims: Claim (Patient) 6, a 26-year-old female, was admitted to Lee Memorial on May 14, 2007, for a scheduled gastric cancer surgery. This patient had a medical condition, but there was no evidence that she presented with an EMC. Patient 6 was discharged on May 21, 2007. Claim (Patient) 46, a 20-year-old male, presented to Lee Memorial’s emergency room on June 10, 2007, following a motor vehicle crash. Patient 46 was admitted to the hospital with a traumatic brain injury, bilateral chest trauma, blunt abdominal trauma with liver injury, and multiple bone fractures complicated by cocaine use. His hospital stay was complicated by the surgically repaired wounds opening, and he required additional surgeries. By July 2, 2007, Patient 46’s cardiology workup was completed, his arrhythmia was resolved, his abdominal wound was improving, and he was tolerating food by mouth. Dr. Wells determined that his EMC was alleviated by July 2. Patient 46 was discharged from the hospital on July 7, 2007. Claim (Patient) 50, a 33-year-old male, presented to Lee Memorial’s emergency room on July 13, 2007, with upper quadrant abdominal pain radiating to his back. Patient 50 was admitted and underwent testing protocol. By July 20, 2007, Patient 50’s white blood count had improved, his temperature was improved and his condition was no longer emergent. Dr. Wells determined that the EMC was alleviated on July 20, 2007. Patient 50 was discharged from the hospital on July 21, 2007. Dr. Beiser credibly testified regarding the following claims: Claim (Patient) 9, a 54-year-old male, presented to Lee Memorial’s emergency room and was admitted on September 4, 2007. Prior to the admission, Patient 9 had been non-compliant with his health care provider’s instructions, and he was told to “go to the ER.” Although he came in through the emergency department, there was no EMC to address, or to be alleviated. Rather, Patient 9 was a non-compliant patient who needed to comply with his physician’s directions. Patient 54 was discharged on September 8, 2007. Claim (Patient) 11, a 33-year-old female, presented to Lee Memorial’s emergency room on April 6, 2007, with a recurrent deep vein thrombosis of her left lower extremity. Her condition was an EMC, and she was admitted. Her physician promptly administered anticoagulation medication and her condition improved, so much so that she was walking well and without chest pain or shortness of breath the following day, April 7. She was discharged on April 9, 2007. Dr. Beiser determined her EMC was alleviated on April 8, 2007. Claim (Patient) 15, a 35–year-old male, presented to Lee Memorial’s emergency room on April 7, 2007, following a motor vehicle accident involving alcohol intoxication. Patient 15 had a left ankle contusion and a closed head injury, which on imaging identified a large brain mass. The mass was determined to be a cyst and no emergent intervention was indicated. The following day, April 8, Patient 15 was alert and oriented with no apparent alcohol withdrawal symptoms. Dr. Beiser determined that his EMC was alleviated on April 8, 2007. Claims 17 and 18 involve the same patient over two different hospitalizations. Patient 17/18, a 51–year-old female, presented to Lee Memorial’s emergency room on September 5, 2007, with complaint of abdominal pain after gastric bypass surgery. She was admitted to the hospital and noted to have ascites, jaundice and diabetes. Patient 17/18 was found to have liver failure and bacterial peritonitis. Dr. Beiser determined that the EMC was alleviated by September 11, when Patient 17/18’s abdominal pain had resolved and there was significant improvement in her overall condition. On October 13, Patient 17/18 again presented to Lee Memorial with complaints of abdominal pain for four days’ duration. She was known to have severe liver disease. Her abdominal pain was suspected to be bacterial peritonitis and this EMC was treated. By October 15, Patient 17/18 was found to be afebrile with no abdominal tenderness. Dr. Beiser determined that the EMC was alleviated on October 15, and the patient was discharged on October 21, 2007. Claim (Patient) 31, a 25-year-old male with a history of meningitis, neurosyphilis and underlying human immunodeficiency virus (HIV), presented to Lee Memorial’s emergency room on June 14, 2007, with an acute febrile illness and neck mass. He was admitted to the hospital and started on IV antibiotics, and a neck biopsy was performed. Patient 31 had a complicated hospital stay as he had persistent fevers, headaches, episodes of hypotension, and sepsis. Through treatment, his condition improved and he was discharged on July 3, 2007. Dr. Beiser determined that the EMC was alleviated on June 27, 2007. Claims 33 and 34 involve the same patient over two different hospitalizations. Patient 33/34 is a 67-year-old female who presented to Lee Memorial’s emergency room on May 21, 2007, with an active gastrointestinal bleed and blood loss anemia. She underwent blood transfusions and the anemia was alleviated by May 22. Patient 33/34 was discharged on May 23, 2007. Dr. Beiser determined that the EMC was alleviated on May 22, 2007. Patient 33/34 presented to Lee Memorial on July 5, 2007, with an active gastrointestinal bleed and blood loss anemia. Patient 33/34 underwent blood transfusions and the anemia was alleviated on July 6. Patient 33/34 refused any further medical procedures, and she was discharged on July 8, 2007. Dr. Beiser determined that the EMC was alleviated on July 6, 2007. Claim (Patient) 37, a 27–year-old female, presented to Lee Memorial’s emergency room on October 12, 2007, with complaints of severe abdominal pain. On October 14, her condition was “improved,” and she denied any abdominal pain, nausea or vomiting. Dr. Beiser determined her EMC was alleviated on October 14. Patient 37 was discharged on October 15, 2007. Claim (Patient) 38, a 32-year-old male, presented to Lee Memorial’s emergency room on September 28, 2007, with complaints of excessive thirst and urination, with some slight weight loss and weakness. He was admitted to the hospital for uncontrolled diabetes. Although Dr. Beiser determined that uncontrolled diabetes is not an EMC, Patient 38’s records demonstrated that he had diabetic ketoacidosis, which is an EMC. With insulin, Patient 38’s EMC was alleviated on September 29, 2007. He was discharged on October 1, 2007. Claim (Patient) 49, a 33-year-old male, presented to Lee Memorial’s emergency room on April 30, 2007, with complaints of right mid-lower quadrant abdominal pain with nausea, vomiting and diarrhea for two days prior to presentation. Patient 49 was admitted to rule out appendicitis. Patient 49 was taken to surgery on May 2, 2007, where an appendectomy was successfully performed. He had an uneventful recovery, and Dr. Beiser determined that the EMC was alleviated on May 2, 2007. Patient 49 was discharged on May 4, 2007. Dr. Shephard credibly testified regarding the following claim: a. Claim (Patient) 36, an 18-year–old female, presented to, and was admitted to Lee Memorial on July 14, 2007, at 31 weeks gestation with a heart condition and mild pre-eclampsia. Her medical condition became emergent on July 26, when she experienced congestive heart failure and decreased oxygen levels. She was transferred to the intensive care unit, and she delivered by emergency C-section on July 28, 2007. Patient 36 was extubated on July 29, and her cardiopulmonary status continued to improve. She was discharged on August 3, 2007. Dr. Shephard determined that Patient 36’s EMC started on July 26 and was alleviated on August 2, 2007. RECOUPMENT OF MEDICAID OVERPAYMENTS Based upon the foregoing findings, and the persuasive weight of the evidence presented by the parties, it is determined: As to Patient 3, EMC was not required for this patient subsequent to December 9, 2006; As to Patient 4, EMC was not required for this patient subsequent to December 8, 2006; As to Patient 21, EMC was not required for this patient subsequent to July 25, 2006; As to Patient 5, EMC was not required for this patient subsequent to April 12, 2006; As to Patient 8, none of this patient’s care was required as emergency medical care; As to Patient 11, none of this patient’s care was required as emergency medical care; As to Patient 27, none of this patient’s care was required as emergency medical care; As to Patient 13, none of this patient’s care was required as emergency medical care; As to Patient 18, although admitted on March 3, 2006, the EMC presented on March 8, and Patient 13 was discharged on March 9, 2006; (The following patients were seen in 2007.) As to Patient 7, no finding of fact was made with respect to the care provided; As to Patient 4, no finding of fact was made with respect to the care provided; As to Patient 12, none of this patient’s care was required as emergency medical care; As to Patient 24, emergency medical care was not required for this patient subsequent to October 14, 2007; As to Patient 27, no finding of fact was made with respect to the care provided; As to Patient 40, emergency medical care was not required for this patient subsequent to November 28, 2007; As to Patient 44, none of this patient’s care was required as emergency medical care; As to Patient 6, none of this patient’s care was required as emergency medical care; As to Patient 46, emergency medical care was not required for this patient subsequent to July 2, 2007; As to Patient 50, emergency medical care was not required for this patient subsequent to July 20, 2007; As to Patient 11, emergency medical care was not required for this patient subsequent to April 8, 2007; As to Patient 15, emergency medical care was not required for this patient subsequent to April 9, 2007; As to Patient 17, emergency medical care was not required for this patient subsequent to September 11, 2007; As to Patient 18, emergency medical care was not required for this patient subsequent to October 15, 2007; As to Patient 33, emergency medical care was not required for this patient subsequent to May 22, 2007; As to Patient 34, emergency medical care was not required for this patient subsequent to July 6, 2007; As to Patient 37, emergency medical care was not required for this patient subsequent to October 14, 2007; AA. As to Patient 38, emergency medical care was not required for this patient subsequent to September 29, 2007; BB. As to Patient 49, emergency medical care was not required for this patient subsequent to May 2, 2007; CC. As to Patient 36, emergency medical care was not required for this patient subsequent to August 2, 2007. With respect to both DOAH case numbers, Respondent offered no testimony or evidence to dispute or rebut the testimony on any of the claims presented above. Each expert credibly testified as to when each EMC presented and the date on which each EMC was alleviated. The experts provided the requisite support to both the AFAR and FAR.
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 sustaining the Medicaid overpayment in DOAH Case No. 14-4171 as $57,337.71, plus sanctions of $2,500, and costs of $2,062.04. With respect to DOAH Case No. 15-3271, the amount due should be recalculated based on only those claims that were found to be overpayments,9/ and costs of $3,528.41. Based on the oral stipulation announced at the hearing (found on Transcript, page 106), AHCA “remove[d] the claim for sanctions as to the 2007 case[s].” DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 27th day of April, 2016
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
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.
The Issue The issue in this case is whether Rule 59G-4.010, Florida Administrative Code, including pages 1-5 and 1-6 of the Florida Medicaid Advanced Registered Nurse Practitioner Coverage and Limitations Handbook (the "ARNP Handbook"), which is incorporated in the rule by reference, is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Rule 59G-4.010, Florida Administrative Code, "applies to all advanced registered nurse practitioners enrolled in the Medicaid program for advanced registered nurse practitioner services under Section 409.906, F.S." It requires all ARNP service providers to comply with the "Florida Medicaid Advanced Registered Nurse Practitioner Coverage and Limitations Handbook, January 1999, which is incorporated by reference " The ARNP Handbook "explains covered services, their limits and who is eligible to receive them." The issue in this proceeding is Medicaid reimbursement for mobile ARNP units. The challenged language is found at pp. 1-5 and 1-6 of the ARNP Handbook, and reads as follows: Mobile ARNP Units Description A mobile ARNP unit is a fully operational vehicle, unit, trailer or office that travels to different locations for the provision of ARNP services and is not a stationary ARNP unit or office. Limitations and Exceptions Medicaid will not reimburse for any ARNP service rendered in a mobile unit regardless of the location with the following exceptions: Mobile ARNP unit owned or operated by the Department of Health complying with Medicaid's County Health Department (CHD) Clinic Services program specifications as a CHD provider; Mobile ARNP unit owned, operated by, or having a contractual arrangement with a Federally Qualified Health Center (FQHC), complying with Medicaid's Federally Qualified Health Center specifications as a FQHC provider; and Mobile ARNP unit certified as a mobile Rural Health Clinic (RHC) Contractual Arrangements with an FQHC Any contractual arrangement between a mobile ARNP unit and a FQHC for the provision of Medicaid ARNP services is subject to the following conditions: The services must be provided by a licensed ARNP on the premises; The services must be covered by the Medicaid ARNP services program and be subject to the same limitations and prior authorization requirements that apply to the ARNP services program; Medicaid reimbursement for ARNP services will only be to the FQHC, which is assigned a clinic group number to bill an encounter rate for clinic services. The treating practitioner who renders the services must enroll as a Medicaid provider affiliated with the FQHC clinic group provider number; The services must be provided at a mobile satellite clinic affiliated with the FQHC; and The services must be provided in accordance with the policy guidelines specified in the Federally Qualified Health Center Coverage and Limitations Handbook. Contractual Arrangements with an RHC All services must be provided in accordance with the policy guidelines specified in the Medicaid Rural Health Clinic Services Coverage and Limitations Handbook. Federal law governs the provisions, requirements, benefits, and service payments of Rural Health Clinics (RHCs), Federally Qualified Health Centers (FQHCs), and County Health Departments (CHDs) as they participate in the Medicaid program. See Title 42 C.F.R. Parts 440.20 and 491 (RHCs), 491 (FQHCs), and 440.130 (CHDs). CCI is a private corporation providing on-site community based primary and behavioral health care services in Hillsborough, Pinellas, Pasco, Polk, and Manatee counties. CCI offers services through a stationary facility in Tampa and two mobile units. The mobile units are retrofitted recreational vehicles configured to have waiting areas, patient work-up areas, lab areas, and private examination rooms. CCI has ceased treating Medicaid patients in the mobile units since the adoption of the challenged rule. CCI's client population consists of the developmentally disabled, psychiatric disabled, and displaced frail elderly living in congregate living facilities. CCI's group of health care professionals includes physicians, ARNPs, and behavioral care therapists. The genesis of the challenged rule was reports of abusive practices by mobile dental units providing services to children. In 1997, ACHA received reports that several such units, all based in Miami, were trolling the state seeking large concentrations of Medicaid-eligible children. These units would stop in low-income housing projects and offer free diagnostic and preventive services to children. Diagnostic and preventive services are especially profitable for the provider, as they take comparatively little time and are usually performed by auxiliary staff rather than the dentist. AHCA found that some of these mobile units functioned as mills, treating as many as 60 children per day. Problems began to arise when these children later presented themselves to their regular dentists for treatment. Medicaid places six month reimbursement limits per child for items such as periodic exams and x-rays. The regular dentists, unaware that their patients had used their eligibility in their visits to the mobile units, performed these services and then found their reimbursement denied due to the six month rule. AHCA also found problems with the treatment provided by the nomadic mobile dental units. There could be no continuity of care because the units moved on after the initial visit. Audits of certain mobile providers found the mobile units dirty, disorganized, and packed with waiting children. Up to 75% of the x-rays taken in the audited units were not of diagnostic quality. Obvious problems such as rotting teeth were ignored in the mobile units, leaving these time consuming and less remunerative procedures to be performed by the regular dentists. During the same time period, AHCA became aware of billing discrepancies involving Vision Express, a mobile provider of optometric services. AHCA found that Vision Express was billing for services not covered by Medicaid, and was employing misleading place of service codes on its claims. AHCA introduced several exhibits documenting its investigation of Vision Express. The exhibits show that the agency's concerns with Vision Express involved billing, not quality of service. The exhibits also indicate that Vision Express was the only mobile visual or optometric unit known to have presented Medicaid billing problems for the agency. The conjunction of problems with dental and optometric mobile units led the agency to conduct a review of its policies and practices regarding mobile units overall. The agency's traditional practice had been to deny reimbursement to mobile service providers because a mobile unit was not termed a valid "place of service" under the Medicaid billing codes. AHCA had no written rule or policy regarding Medicaid reimbursement to mobile service providers in any discipline. AHCA's review was intended to determine whether mobile units should henceforth be reimbursed by Medicaid and, if so, what restrictions should be placed on the activities of mobile units to curb the potential for abuse. Lynne Metz, AHCA's expert in Medicaid program rule making, testified that the agency's research revealed additional problems with ARNPs, as well as the already acknowledged problems with dental and optometric mobile units. Ms. Metz explained that Medicaid rules permit ARNPs to treat a patient and bill Medicaid under their own provider number, which reimburses the ARNP at 80% of the reimbursement rate for physicians. ARNPs may also bill under the provider number for their supervising physician and receive 100% of the physician rate, but may do so only when the physician is physically present and reviews, dates, and co-signs the medical record. Ms. Metz testified that some ARNP mobile units were found to have billed Medicaid at the higher rate even though the supervising physician was not physically present on the mobile unit. Alan Strowd, who was program administrator with the practitioner services unit of Medicaid during the development of this rule, testified that he recalled no complaints about ARNP mobile units regarding the delivery of services, as opposed to billing complaints. AHCA ultimately determined that mobile units have the potential to increase the availability of and access to medical services. However, the agency also determined that there is a potential for abuse of services, potential lack of follow-up care, and potential problems with management of patient records involved with the provision of mobile unit services. The agency decided to craft rules allowing Medicaid reimbursement for mobile unit services, but also decided that some monitoring system should be put in place to minimize the potential for abuse. Mr. Strowd admitted that the agency could address abuse through the existing means of billing edits and the investigative Medicaid Integrity Bureau, and that these means were attempted prior to promulgation of the challenged rule. However, Mr. Strowd testified that these were inefficient "pay and chase" methods, meaning that Medicaid routinely pays the claims, then investigates fraud and abuse after the fact. He testified that these methods require the agency to sift through thousands of providers to find the ones who are committing fraud. John A. Owens, bureau chief of the Medicaid Program Integrity Section, agreed that the standards were in place to enforce compliance with the Medicaid program by mobile unit providers prior to adoption of the rule. Mr. Owens stated that the rule was desirable because it "places a control mechanism" on the mobile unit providers, giving AHCA an entity it can look to for assurance that proper medical records and quality of service are maintained. Mr. Owens testified that AHCA is "at capacity" in terms of the direct oversight it is able to provide. Ms. Metz testified that the agency sought some mechanism to monitor the mobile unit providers that was less onerous than the "pay and chase" method. After considering and discarding the idea of carving out geographic regions to regulate the mobile providers, the agency decided to examine programs that were already working successfully at the county level. The agency's registered nurse specialist for CHDs informed Ms. Metz that federal law has already established mobile provider guidelines for CHD, FQHC, and RHC programs. Ms. Metz testified that "the system was almost handed to us . . . . Here was a local control network . . . that had already been sitting there for us to just turn on the allowance and put it into place." Mr. Strowd opined that he saw no distinction between the activities of a mobile dental unit and a mobile ARNP unit in terms of the potential for problems with continuity of care, billing fraud, and sanitary conditions. No evidence was presented that the agency performed an actual evaluation comparing the services offered by a mobile dental unit to those performed by a mobile ARNP unit. Mr. Strowd agreed that a mobile unit could provide a valuable service, especially if it confined its activity to a small geographic area or primarily serviced rural areas. Thus, the agency decided to amend all twelve of its practitioner handbooks, including the ARNP Handbook, to allow reimbursement of mobile unit service providers, but only if they were owned by or contractually affiliated with a CHD, FQHC, or RHC. The agency determined that this was the least intrusive method to allow the provision of mobile unit services while ensuring quality and continuity of care and reducing the potential for fraud and abuse in the Medicaid program. Mr. Strowd testified that this limitation would assure that there would be oversight of the mobile unit providers at the local level, thus eliminating the need for AHCA supervision at the state level. Ms. Metz also stated that a main purpose of the limitation was to provide for local control: That's the basis of Medicaid, to make sure recipients can get the services they need when they need it, not just, okay, I need a doctor but not five days from now. So that's why we're trying to put this in the local area and not have it regulated from up at the Tallahassee headquarters office. We don't need to be the ones regulating the policy. It has to be in the local county level, FQHC level or RHC level, where they know these recipients are the ones who need the phone pickup, the phone call, the mobile provider, and say we need you to go out. However, Ms. Metz also stated that AHCA would allow a mobile unit provider to provide services pursuant to a contractual arrangement with any RHC, FQHC, or CHD, regardless of the entity's location in the state. Ms. Metz testified that she told Joanna Mulder, the president of CCI, that she did not have to contract with an entity in her service area, that "she could get a contract with anybody and do her services in this area." Ms. Metz did not explain how an FQHC in Pensacola, for example, could provide to a mobile unit provider in Tampa the kind of local knowledge and control that she stated was a prime reason for the limitation adopted by the challenged rule. Mr. Strowd conceded that the actual language adopted in the ARNP Handbook, quoted above, appears to allow mobile ARNP providers to contract with FQHCs and RHCs, but not with CHDs. Mr. Strowd testified that this was an inadvertent omission, and that the intent of the rule is to allow mobile ARNP providers to affiliate contractually with any of the three named providers. Both Mr. Strowd and Ms. Metz conceded that the agency conducted no inquiry as to the practical ability of mobile unit providers to contract with RHCs, FQHCs, or CHDs, or as to legal impediments to such contracts. Ms. Mulder of CCI testified that she has made several efforts to contract with the listed entities. She contacted the Hillsborough CHD and was told that it does not contract with private entities and had no interest in offering additional services. The Polk and Pasco CHDs also had no interest. Ms. Mulder stated that she spent five days trying to contact FQHCs, and that most of them also showed no interest. She was finally able to meet with Jeff Zimmerman, the chief financial officer of Parrish Health Clinic, an FQHC. Mr. Zimmerman told Ms. Mulder that reimbursement limitations in the FQHC Handbook made it impossible for his FQHC to contract with CCI in a way that would provide any financial benefit to the FQHC. Mr. Strowd testified that he had assurances from Greg Glass, president of the Florida Association of Community Health Clinics, the statewide FQHC organization, that any of the 27 FQHCs in the state would be willing to discuss and enter into contracts with private mobile service providers. However, Ms. Mulder testified that Mr. Glass refused to discuss the issue with her, and told her that she would have to contact the individual FQHCs. Ms. Mulder stated that Mr. Glass could not or would not provide her with a list of the FQHCs. He referred her to AHCA for the list. AHCA promised to provide the list, but never did so. Finally, Ms. Mulder stated that she could find only one RHC, and that it never returned her calls. She did not believe a contract with an RHC would be workable in any event, because not all of her patients live in the rural areas to which RHCs are limited in their provision of services. AHCA demonstrated that the amendment to Rule 59G-4.010, Florida Administrative Code, was properly promulgated, and that the procedures instituted for its adoption were proper. The agency considered the rule's impact on small business, concluding it was negligible. The federal Health Care Financing Administration ("HCFA") reviewed and approved the proposed amendment to Rule 59G-4.010, Florida Administrative Code. AHCA conceded that no federal statute or rule mandates the limitation of mobile unit services to entities affiliated with RHCs, FQHCs, or CHDs, but contended that there would be practical difficulties in obtaining HCFA approval of further changes to the approved rule.
Findings Of Fact On an application received by the Respondent on September 5, 1979, the Petitioner, Community Medical Transporters, Inc. (CMT), applied for a temporary non-emergency medical transportation license. CMT indicated that it proposed covering the Broward County area and had three vehicles available. The application was denied on September 21, 1979, by Respondent for the reasons already set out above. CMT was recently incorporated in September, 1979, and has not operated a non-emergency medical transportation service in Broward County or any place else. While at present and at the time of the denial there are no medical transportation services in Broward County providing exclusively non-emergency service, there are at least four HRS licensed ambulance services which provide both emergency and non-emergency service in the area. In addition, there are several transportation services licensed by the Public Service Commission under Chapter 323, Florida Statutes, providing non-emergency service in Broward County. CMT does not hold a certificate of public convenience and necessity from the Broward County Commission. Respondent has no rules which define what statutes the public interest, safety, or convenience and the Department's witness was unable to define what the terms meant except to say that they meant holding a certificate of public convenience and necessity from the appropriate county commission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Community Medical Transporters, Inc., for a non- emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license. DONE and ENTERED this 28th day of December, 1979, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Steven Craycraft Community Medical Transporters, Inc. 5270 N.W. 15th Street Margate, Florida 33063 Harold Braynon, Esquire District X Counsel Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 =================================================================
Findings Of Fact The Department of Health and Rehabilitative Services ("DHRS") administers Florida's Medicaid program and licenses nursing homes to participate in the program. Florida's Medicaid program operates pursuant to the Florida Title XIX Long-Term Care Reimbursement Plan ("Plan"). The Plan expressly incorporates numerous Medicare statutes and other provisions. Medicare reimbursement principles, set forth in the Medicare Provider Reimbursement Manual ("HIM-15"), are applicable to this case. The Plan governs reimbursement for nursing homes participating in Florida's Medicaid program. Participating nursing homes are required to submit cost reports to the DHRS, which audits the reports to assure that such costs are allowable under Medicaid program regulations. Beverly submits such reports on behalf of Suwanee to the DHRS. Prior to August 1, 1986, the Beverly California Corporation ("Beverly") owned and operated Suwanee Health Care Center ("Suwanee"). Suwanee is licensed to participate in the Florida Medicaid program. Suwanee was constructed in 1983 and was financed through the sale of bonds. In 1985, Beverly organized a real estate investment trust ("REIT"), Beverly Investment Properties, Inc. 2/ An REIT raises capital funds through the sale of stock and pays dividends to shareholders. The payment of dividends constitutes the shareholder return on the invested funds. At all times relevant to this proceeding, the REIT, created to provide capital financing for long term health care facilities, constituted a valid real estate investment trust. The REIT purchased the Suwanee facility using funds raised from investors through the sale of stock, and to whom the REIT paid dividends. At the time the REIT was organized in 1985, Beverly owned 5% of the REIT's stock (although at the time of hearing, it held two and one-half percent of the stock). Five of the nine directors and officers of the REIT were associated with Beverly3. The REIT was advised by Beverly Advisors. LTD., a wholly owned subsidiary of Beverly. 3/ On August 1, 1986, Beverly sold Suwanee to the REIT. 4/ On the same date, Beverly leased Suwanee back from the REIT. The sale and leaseback transaction extinguished Beverly's debt on the property. The lease has a fixed term of 14 years with an optional extension for an additional 40 years. Monthly payments are set forth in the lease and escalate over time. The REIT assumed the debt at the time of the sale. The bonds securing the debt were defeased on August 26, 1986. Beverly properly provided notice to the DHRS prior to the execution of the transaction and reported the sale-leaseback arrangement as a related party transaction. The DHRS indicated that no certificate of need or change in licensure was required. On the cost report submitted by Beverly for Suwanee's annual reporting period ending June 30, 1987, Beverly included one month of actual interest and eleven months of "imputed" interest. Beverly based the imputed interest calculation on dividends paid to REIT investors for the period subsequent to the August 1st sale and leaseback. Prior to the sale and leaseback transaction, Beverly received reimbursement from the Florida Medicaid program for property costs related to the Suwanee facility. Such costs included depreciation on the building and equipment, interest expense on the debt incurred to finance the building and equipment, insurance costs and property taxes. In preparing the Suwanee facility's fiscal 1987 cost report, Beverly determined that it should report the lesser of either the property costs prior to the sale and leaseback, or the property costs to the REIT. The costs to the REIT included the cost of dividends paid to investors. The REIT costs were lower that Suwanee's previous property costs. Beverly included the REIT costs on Suwanee's fiscal 1987 cost report. 5/ The initial program audit for the Suwanee fiscal 1987 cost report was performed by Peat Marwick, which provided to Beverly a summary of proposed audit adjustments prior to the audit exit conference. The audit adjustment which is the subject of this case was neither identified in the summary nor discussed at the Peat Marwick-Beverly exit conference. When the DHRS reviewed the Suwanee cost report audit, the DHRS determined that the imputed interest should be disallowed because Beverly's debt on the Suwanee facility had been extinguished by the sale of the property to the REIT. The DHRS determined that Beverly's equity position related to the "debt- free" facilities should be correspondingly increased. The result of the DHRS adjustment is a reduction in Beverly's property cost basis of more than $242,000. The evidence establishes that, under applicable reimbursement principles, DHRS appropriately disallowed the imputed interest reported by Beverly and appropriately increased Beverly's equity position in the Suwanee facilities.
Recommendation Based on the foregoing, it is hereby recommended that the Department of health and Rehabilitative Services enter a Final Order dismissing the Petition of Beverly California Corporation filed in this case. RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1991.
The Issue Whether Petitioner, Agency for Health Care Administration (AHCA or Agency), is entitled to a recoupment of Medicaid funds paid to the Respondent, Florida Hospital Orlando (Respondent), that were overpayments for medical services rendered to undocumented aliens during the audit period.
Findings Of Fact The Parties AHCA is the state agency charged with the responsibility of monitoring and administering the Medicaid program within the State of Florida. AHCA conducts audits, as provided by law, to assure compliance with all pertinent state and federal regulations. As required, AHCA issues audit reports to document a Medicaid provider’s performance during a specified audit period. At all times material to this case, Respondent was a Medicaid provider who received payments for medical services rendered to the Medicaid patients identified in this Order. Respondent complied with all regulations and procedures to secure payment for medical services rendered to patients, including approval from AHCA’s fiscal agent. The fiscal agent is referred to, in this record, as KePro. It is undisputed that the medical services were provided to the patients. The Audit The audit period in this case is July 1, 2005, through December 31, 2005. It is undisputed that Respondent provided all of the medical services rendered to the patients described in this matter during that time frame. The payments for such care, however, were not completed until a time in 2008 that was less than three years from the issuance of the FAR. At all times material to this case, Medicaid providers were required to maintain financial records for a period not less than five years. All of the medical treatments were approved by KePro. All of the patients identified in the instant FAR were or are undocumented aliens. Medicaid allows a provider to render medical care to undocumented aliens only as provided by law. In this regard, only emergency medical care is covered for undocumented aliens. Medical care that may be entirely necessary or appropriate, but is not rendered as “emergency care” may not be reimbursed. The FAR seeks recoupment of Medicaid monies paid to Respondent for non-emergency care rendered to undocumented aliens. The Patients Patient 1 presented to Respondent’s emergency room on October 31, 2005, with a history of nausea, vomiting, and an elevated creatinine indicating renal failure. Patient 1 was 73 years old and reported abdominal pain through an interpreter. Additionally, Patient 1, who was on a cardiac medication, had an elevated potassium level and cardiac arrhythmia. Given Patient 1’s age and condition, it was medically necessary to admit the patient for cardiac monitoring and evaluation. At the time of admission, Patient 1 required emergency care. Renal failure and cardiac arrhythmia may indicate a life-threatening condition. Respondent’s treatment of Patient 1 continued and discovered an enlarged heart, chronic lung disease, along with renal concerns. Under Respondent’s care Patient 1 returned to a regular cardiac rhythm, was rehydrated, and potassium and creatinine levels returned to a normal range. On November 2, 2005, Patient 1’s vital signs were stabilized. Thereafter, Patient 1 remained in the hospital and was monitored until release on November 4, 2005. Patient 2 presented to Respondent’s emergency room on October 31, 2005. Outpatient services rendered for this patient had failed to alleviate an infection in the patient’s right hand. At 88 years of age, if left untreated Patient 2 was in danger of losing a finger if the swelling and infection were not contained. Given Patient 2’s history of diabetes, the concern for spread of the infection to other portions of the hand resulted in admission to the hospital for emergency care. Patient 2 was put on an IV-treatment and the finger was surgically addressed to drain and remove infectious areas. By November 2, 2005, the finger was clinically “looking good” and the antibiotic treatment had started to address the infection. Emergency care was no longer necessary to address the patient’s medical needs. Patient 2 remained in the hospital until November 4, 2005. Patient 3 was another 88-year-old who presented to Respondent with an extended history of diarrhea and abdominal pain. On December 25, 2005, Patient 3 was admitted with an elevated white blood cell count, a low potassium level, and dehydration. Given the patient’s age and circumstance, it was medically necessary to rehydrate Patient 3 with IV-fluids and to monitor renal sufficiency due to rising creatinine levels. After several gastro/intestinal examinations, antibiotic treatment, and elimination of the diarrhea, the patient was released on January 5, 2006. Patient 3 required emergency medical care for the entire stay due to the patient’s age and hydration issues. As the patient did not accept oral medication, the IV-treatments assured continued hydration, potassium improvement, and the administration of antibiotics. Without such care, Patient 3’s health would have deteriorated to a potentially life-threatening situation. On the patient’s day of discharge, Patient 3 was considered medically stable. Patient 4 was a nonverbal autistic child who was brought to Respondent on August 31, 2005. This patient was removed from an inappropriate home setting and taken into custody by the state to protect the child’s safety and health. When he presented at the emergency room, this patient did not have a medical condition that warranted admission to the hospital. The child was taken to the hospital for medical evaluation but only a “social” emergency existed. That is to say, the child had nowhere to go. Although, technically, in the state’s custody, a foster home appropriate for Patient 4’s challenges had to be found before placement could be made. It is undisputed that the child could not be discharged to the street; however, no emergency medical care was necessary for this patient. Patient 5 was admitted to Respondent on October 25, 2005, as a transfer patient from Glades Hospital. This patient was evacuated from Glades due to a hurricane. Patient 5 spoke only Creole, was 80 years of age, and had suffered a recent heart attack. Glades Hospital stabilized the patient sufficiently for transfer into Respondent’s cardiac care unit. Although Respondent sought to perform a cardiac catheterization for this patient in order to evaluate the patient’s heart function, Patient 5’s family refused consent. Respondent continued care for this patient with monitoring and medication, and Patient 5 remained stable. Respondent sought a family member to whom discharge could be made. A son was not located until days later. Patient 5 did not require emergency care while Respondent waited for a discharge disposition. Patient 6 was 67 years old with a long history of a disease called ulcerative colitis. When this patient presented at Respondent’s emergency room, September 3, 2005, there was gastro/intestinal bleeding, pain, and what was presumed to be diverticulitis. Given his inflammatory bowel disease, bleeding, and pain, Patient 6 had a medical emergency and had to be quickly treated to resolve the “acute flare” of this case. Respondent treated Patient 6 with IV-fluids, antibiotics, and medication to decrease inflammation. Patient 6 responded well to the treatment and, by September 4, 2005, was not in an emergent condition. Patient 6 remained in the hospital until September 5, 2005. Recoupment of Medicaid Overpayments Based upon the foregoing findings, and the persuasive weight of the evidence presented by the parties, it is determined: As to Patient 1, emergency medical care was not required for this patient subsequent to November 2, 2005; As to Patient 2, emergency medical care was not required for this patient subsequent to November 2, 2005; As to Patient 3, prior to discharge on January 5, 2006, the date upon which this patient was stabilized, all of Patient 3’s care was rendered as emergency medical care; As to Patient 4, none of this patient’s care was required as emergency medical care; As to Patient 5, emergency medical care was not required for this patient subsequent to October 27, 2005; and As to Patient 6, emergency medical care was not required for this patient subsequent to September 4, 2005. Since Respondent received Medicaid payments for the above-described patients after the patient no longer required emergency care, Petitioner is entitled to a recoupment of Medicaid payments.
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 finding Respondent was overpaid in the amount of $24,055.51 (the full audit amount less the claim for Patient 3) together with costs for a total of $26,203.15. DONE AND ENTERED this 3rd day of May, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of May, 2012. COPIES FURNISHED: John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber, and Carter, P.A. Post Office Drawer 14079 2508 Barrington Circle (32308) Tallahassee, Florida 32317-4079 Andrew T. Sheeran, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3, Mail Station 3 Tallahassee, Florida 32308 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 William H. Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
