The Issue Whether the Respondent's paramedic license should be disciplined based upon alleged violations of Sections 401.411(1)(a) and (k), Florida Statutes.
Findings Of Fact Petitioner, HRS, Office of Emergency Medical Services (EMS), is the state agency which certifies and disciplines emergency medical technicians (EMTs) and paramedics in Florida pursuant to Chapter 401, Florida Statutes (F.S.) and Chapter 10D-66, Florida Administrative Code (F.A.C.). Respondent, Joseph L. Riggall, was initially certified as a paramedic in Florida under Section 401.27 and Rule 10D-66.057, F.A.C., in 1990, and was last recertified by EMS for the biennial period December 1, 1992 through December 1, 1994 pursuant to an application he submitted to the department through its agent on October 25, 1992. Respondent Riggall has not filed for recertification as a paramedic in Florida subsequent to the automatic expiration of his certification on December 1, 1994. A paramedic is a medical paraprofessional authorized under Florida law and administrative rules to administer advanced life support treatment with respect to life-threatening medical emergencies. Florida law defines advanced life support to include the use of techniques such as endotracheal intubation, the administration of drugs or intravenous fluids, telemetry, cardiac monitoring and cardiac defibrillation. A paramedic is authorized to perform invasive techniques in order to help save lives threatened by medical emergencies or severe injuries. As a paramedic, Respondent has a responsibility to the public, HRS-EMS and his employer, Polk County Emergency Medical Services, to perform his patient care duties without being impaired by alcohol, habit forming drugs or controlled substances. Respondent was employed by Polk County Emergency Medical Services for a period of time, including March 1994. Respondent was arrested on March 14 1994 in Polk County, Florida, on charges of prescription forgery to obtain controlled substances. HRS-EMS began an investigation of Respondent on March 23, 1994 based upon a complaint. In early March, 1994, Respondent reported to his shift supervisor that on March 11, 1994, while he was on duty as a paramedic, all of the controlled substances (morphine and Valium) had been stolen and were missing from his ambulance stationed at Fort Meade, Polk County, Florida. Respondent's supervisor immediately requested that Respondent submit to a drug test at Polk General Hospital. Respondent complied. Respondent was drug tested at approximately 12:45 a.m., March 12, 1994 at Polk General Hospital. The results of the tests taken at Polk General Hospital, and submitted to Metpath Laboratory for testing on samples from Respondent's serum and blood revealed a very high level of morphine (opiates) in Respondent's bloodstream. The level of opiates in his blood was greater than 1,999 mcg/1 and confirmed by immunoassay by the testing laboratory. Respondent admitted to the use of prescription opiate medication on March 11 and 12, 1994 while on duty as a paramedic. As a result of the drug testing of Respondent conducted the evening of March 11 and continuing the morning of March 12, 1994, and Respondent's arrest on March 14, 1994 on other charges related to improperly obtaining controlled substances or prescription medications, the Polk County EMS Medical Director rescinded Respondent's ability to function under the medical director's medical license. Furthermore, Respondent's employer, Polk County EMS, suspended Respondent without pay from his position as a paramedic with Polk County. Subsequently, Polk County EMS discharged Respondent, after providing a pre- determination conference, on August 26, 1994. HRS-EMS issued an Administrative Complaint, dated July 18, 1994, charging Respondent with a violation of EMS statutes, in particular Section 401.411(1)(a) and (k), Florida Statutes by having tested positive to controlled substances while on duty as a paramedic for Polk County EMS, March 12, 1994. HRS-EMS has adopted an "impaired" EMTs or paramedics policy and program pursuant to Rule 10D-66.0571, F.A.C.. While the administrative complaint tracks the department's impaired practitioner's rule and provided notice to Respondent relative to the rule, Respondent failed to take advantage of this beneficial program. Under the impaired practitioner's rule of HRS-EMS, a paramedic who becomes impaired as a result of drug or alcohol use or addiction may avoid administrative sanction by performing voluntary activities including those listed in the department's administrative complaint against Respondent. Respondent reported for duty as a paramedic while taking a level of controlled substances which impaired his ability to safely provide care to patients.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: 1. The paramedic certification of Respondent be revoked and an administrative fine of one thousand ($1,000) dollars for the violation of paramedic certification requirements be imposed. It is further RECOMMENDED that should Respondent reapply for certification as a paramedic or EMT in Florida, he be required to submit to, and successfully complete, the conditions set forth in Rule 10D-66.0571(2), Florida Administrative Code, and pay the administrative fine recommended above, prior to recertification. DONE and ENTERED this 15th day of February, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 (in part), 19, 20, and 21. Rejected as subsumed or covered in the Preliminary Statement: paragraphs 12, 13, 14, 15, 16, 17, 18, and 22. Respondent has not submitted proposed findings of fact. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Daniti, Esquire Emergency Medical Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 Joseph L. Riggall 13711 Hatchienha Road Haines City, Florida 33844
The Issue The issue for determination is whether an amount of up to $46,901.85, which Petitioner paid on behalf of eligible aliens for emergency hospital inpatient services that Respondent provided during the period from January 1, 2007, to December 31, 2007, constitutes an overpayment that Respondent must return, on the grounds that the services are not covered by Medicaid, despite having been included in claims of Respondent's that were prior authorized by Petitioner before payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order adjudicating Gulf Coast not liable for the overpayment, or any part thereof, alleged in the Final Agency Audit Report dated February 26, 2015. DONE AND ENTERED this 26th day of January, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of January, 2016
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
The Issue Is the practice of Respondent, Agency for Health Care Administration (Agency), limiting Medicaid reimbursement for services provided to undocumented aliens determined by the Department of Children and Families (DCF) to be eligible for Medicaid services for the duration of a medical emergency an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency"1/ that section 120.54, Florida Statutes (2014),2/ requires the Agency to adopt as a rule? Are Agency rules 59G-4.160(2) and 59G-5.020 invalid because they exceed the Agency's delegated authority and contravene the statute which the rule implements?3/ & 4/
Findings Of Fact The Parties Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal financial participation (FFP) from the federal government for services provided to Medicaid-eligible recipients in accordance with federal law. The state also provides funding for the Medicaid program. Section 409.902(1) designates the Agency to administer Florida's Medicaid program. The program provides medical care for indigent people in Florida. Federal and state laws, federal regulations, and state rules, including Medicaid handbooks incorporated by reference into the rules, govern eligibility for, participation in, and payment by the program. The Hospitals are acute care hospitals enrolled as providers in the Florida Medicaid program that provide emergency medical services. They have obtained, and intend to seek in the future, Medicaid compensation for emergency services provided to undocumented aliens. To participate in the Medicaid program, the Hospitals have agreed to a Medicaid Provider Agreement with the Agency. The agreement governs the terms under which the Medicaid program will compensate hospitals for services provided to individuals. Those terms include multiple state and federal statutes and rules discussed below. The Agency makes payments to Hospitals subject to its right to later audit the claims for payment and recoup payments if the Agency determines that they were not authorized. The Medicaid Program and Undocumented Aliens Until 2010 Federal law prohibits compensating a state through federal financial participation under the Medicaid program "for medical assistance furnished to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law [undocumented aliens]." 42 U.S.C. § 1396b(v)(1). It permits federal financial participation for services provided to otherwise eligible undocumented aliens that "are necessary to treat an emergency medical condition as defined in paragraphs (b)(1) and (c)," if the individual otherwise meets the conditions for participation in the Medicaid program. 42 C.F.R. § 40.255(a). See also 42 U.S.C. § 1396b(v)(2). For purposes of eligibility of undocumented aliens, 42 U.S.C. § 1396b(v)(3) defines "emergency medical condition" as: medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-- (A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. Florida statutes and rules, with minor variations, incorporate the federal standards limiting the eligibility of undocumented aliens to treatment for emergency medical conditions. Federal laws and regulations do not impose a defined endpoint or quantitative limit on the duration of the eligibility due to the emergency medical condition. Sections 409.902 and 409.904 address Medicaid services for undocumented aliens. Section 409.904(4) establishes the criteria for the limited Medicaid eligibility of undocumented aliens. Section 409.902(1) designates the Agency "as the single state agency authorized to make payments for [Medicaid services]." Section 409.902(1) makes [DCF] "responsible for Medicaid eligibility determinations." Section 409.902(2) restricts Medicaid eligibility to United States citizens and lawfully admitted noncitizens who meet the Medicaid eligibility criteria for "qualified noncitizens" for temporary cash assistance.5/ Section 409.902(2)(b) limits use of state funds to provide medical services to individuals who do not meet the requirements of the subsection. It permits an exception for use of state funds to provide medical services that are necessary "to treat an emergency medical condition." The Florida Medicaid Hospital Services Coverage and Limitations Handbook, June 2011 (Hospital Handbook), incorporated by reference into the Agency's rule 59G-4.160(2), states on page 2-7 the limits on reimbursement for services provided undocumented aliens as follows: 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. The Florida Medicaid Provider General Handbook, 2012 (Provider Handbook), incorporated by rule 59G-5.020, repeats this limitation. Earlier versions of the Handbooks have essentially the same requirements and limitations. Section 409.904(4) authorizes DCF to find an undocumented alien eligible for Medicaid, but limits the duration of the eligibility for undocumented aliens. It states: 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. From 2005 to 2012, the definitions of section 409.901 for "emergency medical condition" and "emergency services and care" have remained unchanged, although the subsection numbering for them has changed. "Emergency medical condition" is defined 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. With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery. That a transfer may pose a threat to the health and safety of the patient or fetus. That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. "Emergency services and care" are defined as: [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. DCF's Emergency Medical Services for Aliens, rule 65A-1.715, 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). DCF's rule 65A-1.702(2)(c), implementing Title XIX, in its provisions for establishing a patient's date of eligibility, states: "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." Until July 1, 2010, neither DCF nor the Agency had a system, procedure, or practice for determining when the duration of an undocumented alien's emergency ended or when the emergency was alleviated, other than the initial determination of eligibility. DCF's consistent practice was to make its eligibility determination based upon a review of the information provided by healthcare providers on DCF Form 2039 after discharge of the patient. The providers usually provided additional information and documents, including information about the diagnosis and treatment and the projected or actual duration of the emergency. DCF's practice, since 2002, has been to routinely accept the information and documents submitted by the provider and base the eligibility determination on them. DCF's consistent practice was to not allow providers to submit any documentation until after the patient was discharged. Consequently, the information upon which DCF based its eligibility determination for undocumented aliens was actual, not projected. DCF notifies providers of the eligibility decision by sending a completed DCF Form 2039 or making the information available online. The information contains the specific period of eligibility for the undocumented alien, including the beginning and ending date of the eligibility period. This is the duration of the emergency medical condition. Until July 1, 2010, under previous administrations, the Agency did not make any consistent or meaningful effort to determine if the services for which a hospital billed Medicaid were for the emergency medical conditions that were the predicate for DCF's determination of emergency eligibility. The Agency's automatic process for reviewing Medicaid claims kicked out claims for services to undocumented aliens eligible because of an emergency medical condition. These claims were manually reviewed by just two nurses. The system allowed two choices, "approve" or "deny." Sometimes the nurses reviewed requests for Medicaid reimbursement from providers solely to determine if the services provided were medically necessary. This is the same standard used to determine if Medicaid will pay for services provided to citizens and documented aliens. The process and the number of claims overwhelmed the two nurses conducting the review. A huge claims backlog developed. This resulted in the review becoming more minimal and intermittent. Hospitals complained about the resulting payment delay. The Agency worried about it, too. On September 9, 2009, Dyke Snipes, deputy director of Medicaid, released all the backlogged claims for payment without review. Later, he sent the hospitals a memorandum stating the claims would be paid without further review subject to later audit and claims for recoupment. However, from July 1, 2005, through June 30, 2010, the Agency did not audit any of the claims for payment for hospital services provided to undocumented aliens. In 2002, as required by statute, the Agency began a prior authorization program for Medicaid inpatient hospital services. The purpose was to determine, before payment, if services were medically necessary. The Agency contracted with KePRO to perform the prior authorization reviews for medical necessity. In the case of services to undocumented aliens, the prior authorization review and medical necessity determination was not made, despite the name, until the patient was discharged. The Agency's Bureau of Medicaid Services performed a separate review of claims for payment of services to undocumented aliens to determine if the services were for the treatment of an emergency medical condition. The Bureau conducted this review after the Department had determined that the patients were eligible for Medicaid and after KePRO had authorized the services. Nurses employed by the Agency reviewed the claims and accompanying records to determine if the services were for treatment of an emergency medical condition. The review did not include judgments about the number of days appropriate for treatment, the relationship between services provided, and the emergency or the duration of the emergency. Before July 1, 2010, the Agency, to the extent that it did anything, implemented and applied the rule, statute, and regulation provisions permitting payment for emergency medical services to eligible undocumented aliens by paying claims for the period of eligibility determined by the Department for services that KePRO determined were medically necessary and that the Bureau had determined to be necessary for treatment of an emergency medical condition. The Agency did not conduct a targeted review to determine when the emergency ended or when the emergency was alleviated. Altogether, the Agency was just not enforcing the statutory and rule limitations upon payment for emergency medical services to persons that DCF determined eligible. Federal Audit Eventually, Florida's failure to enforce the limitations came to the attention of the federal government. On August 25, 2009, the federal Centers for Medicare and Medicaid Services (CMS) presented the Agency with the report of its Financial Management Review of Florida's Medicaid Payments for Emergency Services to Undocumented Aliens. The transmittal letter asked Florida "to retroactively review claims for emergency medical services provided to undocumented aliens for proper eligibility determinations. We will defer these claims until the State has reviewed the claims." The federal government said that payment of the FFP to Florida for emergency medical services for undocumented aliens was in question, but it would delay deciding while Florida conducted the requested review. In plainer words, the federal government said it would hold up on recouping FFP paid for services to undocumented aliens. CMS "determined that the Agency for Health Care Administration (AHCA) claimed Federal Financial Participation (FFP) for emergency services to beneficiaries that did not meet the Federal Definition of undocumented alien. In addition, AHCA claimed FFP for additional medical services that did not qualify as emergency care after the patient was stabilized." Finding number 2 of the report stated: "AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency." Recommendation number five stated: 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. Based on this review and re-determination, AHCA should revise previous FFP amounts claimed on the Form CMS-64 quarterly statement of expenditures report to reflect only emergency services to undocumented aliens (supported by SAVE and IVES research) up to the point of stabilization. Upon completion, please report the results of your review to CMS. Recommendation number 6 stated that: "AHCA [should] promptly implement the necessary system edits so that services provided as emergent care can be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs."6/ The audit identified the Agency's electronic claims system's lack of system edits needed to account and separate claims for costs incurred "during emergent care and costs past stabilization" as a contributing factor. CMS concluded that it believed Florida's claims for payment for emergency medical services were "significantly overstated." The report stated: "During our review, we found that AHCA is claiming costs for emergency services for undocumented aliens, during the patients' entire hospital stay, and beyond the emergency or stabilization point as defined by Federal statutes and regulations." It asked Florida to conduct "re-reviews of claims for emergency medical services provided undocumented aliens." CMS did not recommend that Florida change its statutes or rules governing Medicaid eligibility of undocumented aliens. It only recommended that Florida enforce existing law. In September 2010, the Office of Inspector General for the United States Department of Health and Human Services released its "Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens [by Florida]." This review observed that the Agency "relied upon two medical staff to review approximately 4,000 such claims per month, and this limited review was not sufficient to prevent some unallowable claims from being paid." The review also noted the problem with the system edits that the Agency was using. The system just identified claims for services to undocumented aliens and kicked them out for review by the two nurses who were not capable of properly reviewing the claims because of the overwhelming volume. The review observed that the system had an edit which could classify claims under five options: emergency, urgent, elective, newborn, and information not available. The review stated: "If active, this edit may have ensured that the State Agency properly claimed Federal reimbursements." The audit and the review, as well as the testimony of Johnnie Shepherd, the Agency administrator, convincingly establish that up to 2010, the Agency was not applying or enforcing federal or Florida statutory and rule requirements limiting medical services to undocumented aliens for emergency conditions. The Agency Reacts to the Audit and Review The Agency began working to implement the recommendations. KePRO presented a proposal to expand the scope of its services that it described in this fashion: It is our understanding that the Agency for Health Care Administration used internal resources to conduct such [emergency care for undocumented aliens] reviews. Previously, cases were authorized for payment using medical necessity criteria verses [sic] "point of stabilization." Approximately 12,000 cases dating back to 2006 fall into this category. This presents the Agency with an opportunity to recoup payments for hospital days that exceeded the "point of stabilization." The Agency amended its contract with KePRO to include review of claims for emergency services to undocumented aliens to determine if the services continued beyond the duration of the emergency. The Agency and KePRO began the review process. The requirements are included in the Agency's contracts with KePRO's successor, eqHealth Solutions. The Agency began advising providers of the coming changes in review and authorization of Medicaid services for undocumented aliens. The Agency's campaign incorporated use of "stabilization" from the CMS reviews. "Stabilization" did not appear in any pertinent Florida statutes or rules. A July 1, 2010, letter to all Medicaid providers from the chief of the Bureau of Medicaid Services advised of upcoming changes to the Agency's procedure and practice for reviewing claims for undocumented aliens. It is representative of the Agency's approach. The letter stated: Beginning July 1, 2010, the Keystone Peer Review Organization (KePRO), Medicaid's contractor for utilization management of inpatient services, will implement revised review processes for inpatient admissions for undocumented aliens. KePRO will review these requests to determine whether conditions requiring hospitalization are an emergency, defined in 42 CFR 440.255 as follows: The sudden onset of a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: Placing the patient's health in serious jeopardy; Serious impairment to bodily functions; or Serious dysfunction of any bodily organ or part. Medicaid will not pay for continuous or episodic care after the emergency has subsided and the patient is stabilized. The letter also stated: Professional services provided to an inpatient alien on or after the date that the patient has been stabilized will not be reimbursed by Medicaid. From the point of patient stabilization, the patient may continue to require medically necessary treatment; however, Medicaid cannot reimburse medically necessary treatment for aliens, only emergency treatment. Hospitals, including many of the challengers here, brought an action claiming the Agency was using a new "stabilization" standard that amounted to a rule that had not been adopted. They prevailed. That action was Bayfront I. The Final Order in Bayfront I found that "the 'point of stabilization' standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them." Bayfront I, DOAH Case No. 12-2757RU, at ¶ 54. It concluded that the "Agency's 'stabilization' standard for determining which services to un-documented aliens Medicaid will pay for is a statement of general applicability meeting the definition of a rule that has not been adopted pursuant to section 120.54(1)(a)." Bayfront I, DOAH Case No. 12-2757RU, at ¶ 74. The Final Order required the Agency to "immediately discontinue all reliance upon the 'stabilization' standard or any substantially similar statement as a basis for agency action." Since Bayfront I The Agency complied with the Final Order by discontinuing all reliance on a "stabilization standard" (or any other unadopted standard) as a basis for agency action. It did not abandon its efforts to review past, present, and future hospital claims for Medicaid payment for emergency services provided to undocumented aliens. The Agency developed new instructions for peer reviewers evaluating claims and amended affected contracts. It provided reviewers the language of the governing rules and statutes to use in evaluations. The material included the provisions of the Florida Medicaid Handbooks that have been incorporated by reference into the Agency's rules. The Agency emphasized, as Shevaun Harris, bureau chief, Bureau of Medicaid Services, testified: [Peer reviewers should] no longer use stabilize, to use--to use that terminology anymore, and that they should follow the policy. The policy--the handbook provides instruction to readers in terms of which words they need to go back to the glossary. And then words that are not defined are its plain--should be used--should be applied using its plain meaning. (Pet. Ex. 130, pp. 29 & 30). The Agency expected the reviewers to apply their education, clinical expertise, and experience to determine if services provided were "emergency services or treatment," as defined in section 409.901(11) for an "emergency medical condition," as defined in section 409.901(10). A January 28, 2013, memorandum to peer reviewers from Johnnie Shepherd, AHCA Administrator, Medicaid Program Integrity, is a representative example of the Agency's instructions to peer reviewers. It told the reader of the result of Bayfront I and stated that the Agency "will cease to rely upon the 'stabilization' standard or any substantially similar statement as a basis for determining the duration of the emergency." The Agency attached applicable excerpts from statutes and rules. It also advised the importance of reports "of sufficient detail and complexity to clearly support any claims payment adjustments based upon the medical determination and the application of Medicaid rules." (P. Ex. 130, AHCA Bates No. 463). Similarly, the Agency advised other "vendor[s] to make sure that they were using terminology as found in the rules that are promulgated and that their determinations are consistent with the rules as they are promulgated." (Pet. Ex. 130, p. 15). The vendors advised their employees and agents accordingly. Exhibit 2 to the desposition7/ of Carol Roberts, program manager for the Fee for Service Rules Unit, is a representative example of these instructions. The Power Point slides for a presentation reproduced the statutory definition for "emergency medical condition" and "emergency services and care." A March 7, 2013, internal eqHealth e-mail from Naveen Gande to Mary McPhee demonstrates that the vendors followed the instructions. It states that the "stabilization" standard should not be used and that reviewers should refer to the Agency handbooks. Likewise an e-mail exchange between Mr. Shepherd and Eileen Bechkes of Vendor Health Integrity demonstrates the Agency's reliance upon statutes and rules. Ms. Bechkes relayed a question from Winter Haven Hospital asked during an audit entrance conference. It asked to "explain the difference between the standard of 'stabilization of the emergency condition' and the standard of 'emergency condition is relieved or eliminated.'" (Pet. Ex. 119[B], p. 3).8/ Mr. Shepherd's response states the Agency position frankly. Thanks for this question. Our positon is to direct the provider to the Medicaid Provider's general Handbook and the other references mentioned in the audit letters. Since this question has been brought up prior to the other letters conveying the references to the provider, we should simply tell them to read the Medicaid policy reference for the limited coverage category that pertains to Medicaid for Aliens as found in the Medicaid Provider General Handbook. Also, the General Handbook includes definitions for Emergency Services and Care and Emergency Medical Condition. Finally, we are asking the peer reviewers to apply their education, experience and judgment in reviewing the respective medical records to determine if an emergency medical condition existed, and if it did at what point was the emergency medical condition alleviated or eliminated per the definitions found in the Medicaid references. The instructions to Agency or vendor employees reviewing the claims for payment for emergency medical services to undocumented aliens consistently emphasized that all participants were to apply only the applicable statutes and rules and that "stabilization" was not a criterion. The Hospitals rely heavily upon the wording of the post-Bayfront I amendment to the eqHealth contract (P. Ex. 89) and Ms. Harris's testimony about it. (P. Ex. 130, p. 117, ll. 19-22). These things, the hospitals argue, prove that the Agency is still attempting to determine the length of the period of eligibility and that this is a new interpretation of the rules and statutes. The existing language provided that the vendor would review the cases to time the point at which the emergency no longer existed and the patient's condition was stable. The amendment said: "The Vendor shall review these cases to determine the point at which the emergency no longer exists, in accordance with state and federal statutes." Ms. Harris's testimony on page 119 of Petitioner's Exhibit 30 clarifies that the amendment was referring to "the Agency's obligation to pay for services for undocumented aliens or individual who met all other requirements for Medicaid, except citizenship." The weight of the evidence, including training materials and written communications, proves that despite poor wording in the amendment, the parties to the contract stayed focused on determining whether the Agency was being asked to pay for services that state and federal law permitted it to, not determining the length of the emergency medical condition. The Agency was resolute in its commitment to only apply the standards and definitions of statutes and rules in the evaluation of claims for payment for emergency medical services to undocumented aliens. The Agency's resolve was tested in meetings with provider representatives, inquiries from vendors, and internal questions. Agency representatives repeatedly said that the rules and statutes determine the standards and people should apply the plain meaning of their words. Agency documents did the same. The Agency did not succumb to the temptation, as it did with "stabilization," to explain in different words the words of statute and rule. The weight of the evidence convincingly established that after entry of the Final Order in Bayfront I, the Agency's statements of general applicability implementing the law governing Medicaid reimbursement for emergency medical services to undocumented aliens were only quotes from or references to governing statutes and rules.
