The Issue Whether the Agency for Health Care Administration's (the Agency's or AHCA's) decision to award the contract contemplated in RFP No. 0610, Area 9, is contrary to the Agency's governing statutes, the Agency's rules or policies, or the proposal specifications.
Findings Of Fact On April 3, 2006, AHCA issued solicitation number AHCA RFP 0610, titled Prepaid Mental Health Plan, AHCA Areas 8 and 9. The RFP sought a Prepaid Mental Health Plan vendor for certain Medicaid recipients in the Agency's Area 9, defined as Indian River, Martin, Okeechobee, Palm Beach and St. Lucie Counties.1/ Lakeview did not challenge the RFP specifications. Lakeview, Magellan and Mental Health Network submitted responses to the RFP. The Agency rejected the response filed by Mental Health Network because it failed to meet a mandatory requirement of the RFP. The Agency accepted Lakeview and Magellan's proposals as responsive to the RFP. The Agency employed three evaluators to review parts of the bids submitted. Those reviewers were Erica Carpenter, George Woodley and Jill Sorenson.2/ After calculation of the average ranking of the scores, Magellan was ranked as the highest scored bidder and Lakeview was ranked second. Terms of the RFP The RFP is made up of an initial two-page transmittal letter and 30 attachments. Relevant to this inquiry are terms contained in the transmittal letter and Attachments A, C, D and E. Attachment A specifies the following with regard to submitting a proposal: 9. Respondent's Representation and Authorization. In submitting a response, each respondent understands, represents and acknowledges the following (if the respondent cannot so certify to any of the following, the respondent shall submit with its response a written explanation of why it cannot do so) * * * The product offered by the respondent will conform to the specifications without exception. The respondent has read and understands the Contract terms and conditions and the submission is made in conformance with those terms and submissions. If an award is made to the respondent, the respondent agrees that it intends to be legally bound to the Contract that is formed with the State. The respondent has made a diligent inquiry of its employees and agents responsible for preparing, approving, or submitting the response, and has been advised by each of them that he or she has not participated in any communication, consultation, discussion, agreement, collusion, act or other conduct inconsistent with any of the statements and representations made in the response. The respondent shall indemnify, defend and hold harmless the Buyer and its employees against any cost, damage or expense which may be incurred or may be caused by any error in the respondent's preparation of its bid. All information provided by, and representations made by, the respondent are material and important and will be relied upon by the Buyer in awarding the contract. Any misstatement shall be treated as fraudulent concealment from the Buyer of the true facts relating to submission of the bid. A misrepresentation shall be punishable under law, including but not limited to, Chapter 817 of the Florida Statutes. This provision is understood to indicate that the Agency will take all representations at face value, a conclusion that is consistent with the provisions in the following paragraph: 10. Performance qualifications. The Buyer reserves the right to investigate or inspect at any time whether the product, qualifications, or facilities offered by respondent meet the Contract requirements. Respondent shall at all times during the Contract term remain responsive and responsible. . . . If the Buyer determines that the conditions of the solicitation documents are not complied with, or that the product proposed to be furnished does not meet the specified requirements, or that the qualifications, financial standing, or facilities are not satisfactory, or that performance is untimely, the Buyer may reject the response or terminate the Contract. . . . This paragraph shall not mean or imply that it is obligatory upon the Buyer to make an investigation either before or after the award of the Contract, but should the Buyer elect to do so, respondent is not relieved from fulfilling all Contract requirements. Attachment C of the RFP contains the special conditions relevant to this procurement, including the timeline for the solicitation, a description of mandatory requirements, provision for vendor questions and a vendor's conference, and required certifications to be included with any proposals. In terms of mandatory requirements, Section C.7 of Attachment C states: C.7 Mandatory Requirements. 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 solicitation, 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 solicitation requirements, provides an advantage to one respondent over another, or has a potentially significant effect on the quality of the response or cost to the state. Material deviations cannot be waived. The words "should" or "may" in this solicitation indicate desirable attributes or conditions but are permissive in nature. Deviation from, or omission of, such desirable features will not in itself cause rejection of a response. Sections C.13 and C.14 of Attachment C address several certifications which must be included with any response to the solicitation. At the end of each of these sections, is a statement in bolded and capital letters stating, "FAILURE TO SUBMIT ATTACHMENT [G , REQUIRED CERTIFICATIONS, SIGNED BY AN AUTHORIZED OFFICIAL, or ATTACHMENT J, GENERAL VENDOR ELIGIBILITY REQUIREMENTS, respectively] SHALL RESULT IN THE REJECTION OF A PROSPECTIVE RESPONSE. Similarly, Section C.15 states that an original technical response must be accompanied by a proposal guarantee payable to the State of Florida in the amount of $5,000 and made in the form of a bond, cashier's check, treasurer's check, bank draft or certified check. As with Sections C.13 and C.14, Section C.15 ends with a statement in bolded and capital letters, stating, "FAILURE TO INCLUDE THE PROPOSAL GUARANTEE WITH THE SUBMISSION OF THE ORIGINAL RESPONSE WILL RESULT IN THE REJECTION OF A PROSPECTIVE VENDOR'S RESPONSE." Subcontracts for the project are discussed in Section C.20 of Attachment C. This section provides in pertinent part: The vendor shall be responsible for the administration and management of all aspects of the contract and the Prepaid Mental Health Plan resulting from the RFP. This includes all aspects of network management, subcontracts, employees, agents and anyone acting for or on behalf of the vendor. The vendor may, with the consent of the Agency, enter into written subcontract(s) for performance of certain of its functions under the contract. The vendor must have subcontracts with all administrative and service providers who are not salaried employees of the plan prior to the commencement of services under this contract. . . . The vendor must submit signed subcontracts, for a complete provider network in order obtain Agency approval for operation in an area, within sixty (60) days of the execution of this contract, for each proposed subcontracted provider. (Emphasis supplied.) Section C.38 provides the general instructions for response preparation and submission. It specifies that the response shall include a transmittal letter; proof of appropriate licensure or application for same; an accreditation certification; the proposal guarantee; a cross-reference table between the proposal and the RFP scope of service requirements; and the actual technical response. With respect to the technical response, the RFP requires that it be prepared in the order specified, with sections tabbed for ease of identification and evaluation. The RFP further states that "[s]pecific questions to be answered within these sections can be found in Attachment E." Attachment D describes the scope of services sought through the solicitation. It provides a general background for issuing the RFP, describes its purpose, and the type of services that a successful vendor must provide. Included within this Attachment are many of the definitions pertaining to the services sought, and the Attachment outlines both mandatory and optional services to be provided by a successful vendor to enhance the plan's covered services for enrollees. The scope of services provides guidance concerning what must be included for each section of the technical response. Nothing in the RFP required a respondent to submit letters of intent with potential subcontractors as part of its submission in response to the RFP. Attachment E is entitled "Evaluation Criteria." The relevant portions of Attachment E provide the following: Review of Mandatory Criteria. Responses to this solicitation will be evaluated against the mandatory criteria found in Part I, Technical Response Mandatory Criteria. Responses failing to comply with all mandatory criteria will not be considered for further evaluation. Evaluation of Responses. Each response determined to be in compliance with all mandatory criteria will be evaluated based on the criteria and points scale delineated in Part II, Evaluation Criteria. Each response will be individually scored by at least three evaluators having expertise and knowledge of the services required by this solicitation. However, the Agency reserves the right to have specific sections of the responses evaluated by less than three individuals. Responses will be evaluated on a per area basis. 1. Evaluation points awarded will be based on the following point structure: Points The component was not addressed. The component contained significant deficiencies. The component is below average. The component is average. The component is above average. The component is excellent. * * * Ranking of responses. Each evaluator will calculate a total score for each response. The Chairman will use the total point scores to rank the responses by evaluator (response with the highest number = 1. second highest = 2, etc.). The Chairman will then calculate an average rank for each response for all the evaluators. The average rankings for each response shall be used to determine a recommendation for contract award for each area. . . . (Emphasis supplied.) Page 3 of 12 in Attachment E contains Part I, TECHNICAL RESPONSE MANDATORY CRITERIA, referenced in Section E.1, above. It states: This evaluation sheet will be used by the Agency for Health Care Administration to designate responses as qualified or not qualified. If the answer to any of the questions in the table below falls into the "No" column, the response will be designated as "not qualified" and will not be considered for further evaluation. QUESTIONS YES NO 1 Did the response include the signed Attachment G, Required Certifications Form required in Section C.13? 2 Did the response include the completed Attachment J, General Vendor Eligibility Requirements Form as required in Section C.14? 3 Did the response include a transmittal letter, signed by an individual having the authority to bind the vendor, as outlined in Section C.38? 4 Did the response include a copy of the vendor's certificate of authority issued by OIR; or documentation proving application for the certificate as required in Section C.38? 5 Did the response include Attachment DD, Prepaid Mental Health Plan Attestation of Accreditation Status Form Required in Section C.38? 6 Did the response include a proposal guarantee in the original Technical Proposal in the amount of $5,000 as specified in Sections C.15 and C.38? Pages 4 through 12 of Attachment E identified the evaluation criteria used to score responses meeting the mandatory criteria identified in Part I. The general category "Organization and Corporate Capabilities" could receive a total of 80 points. Within that category, points would be awarded under the subcategories labeled legal entity; network; organizational structure; mental health care experience; community coordination and partnerships; management information system; administrative reporting; financial statements; legal actions; financial risk and insolvency protection; surplus fund requirement; and contractor's and subcontractor's facilities and network management. The general category "Operational Functions" could receive a total of 90 points. The subcategories identified for scoring include the service area of proposed plan; outreach requirements; mental health care provider assignment procedures; enrollee services; grievance procedures; quality improvement requirements; care coordination; clinical records requirements; out-of-plan services; cost sharing policies; after hours access; and the proposed subcontractor/provider network. The RFP anticipates that the winning proposer would contract with Community Mental Health Centers (CMHCs) to provide a portion of the services to be provided under the contract awarded pursuant to the RFP. Three CMHSs are located in Area 9: Oakwood Center of the Palm Beaches, New Horizons of the Treasure Coast and South County Mental Health Center. Oakwood Centers of the Palm Beaches and New Horizons of the Treasure Coast both operate multiple locations throughout Area 9. South County Mental Health Center operates from a single office in Delray Beach, Palm Beach County. Both Lakewood's and Magellan's proposals anticipated contracting with all three CMHCs. Neither had binding agreements with any of the CMHCs. Review of the Proposals AHCA found that both Magellan's and Lakeview's proposals met the requirements outlined in Part I, Technical Response Mandatory Criteria. As previously stated, the proposal submitted by Mental Health Network was rejected for not meeting this criteria. The Agency's decision that Lakeview's and Magellan's proposals were responsive to the RFP and would be evaluated is consistent with the terms of the RFP as specified in Attachment E. Both Magellan's and Lakeview's proposals contained information for each of the technical sections of the RFP dealing with provision of a network of providers. Once the submissions were provided to the Evaluators for scoring, no evaluator gave a "0" for any section of either proposal. In other words, the Evaluators were satisfied that each submission provided information for each section identified as mandatory under the scoring criteria. Instructions for scoring proposals that met the requirements of the Technical Response Mandatory Criteria were provided by Barbara Vaughan of the Agency's procurement office, and by Deborah McNamara, who was in part responsible for preparing the RFP. Those instructions directed the Evaluators to use the evaluation criteria contained in the RFP. The instructions specified that each evaluator was to review the proposals separately and under no circumstance were they to discuss their evaluations with anyone other than the Chairman or the Procurement office. The evidence reflects that the Evaluators followed these instructions. There are four sections of the RFP that could be said to address the assembling and coordination of a network providers: Section 3.B (Network); Section 3.E (Community Coordination and Partnerships); Section 3.L (Contractor's and Subcontractor's Facilities and Network Management); and Section 5.M (Subcontracts/Provider Network). With regard to provision of a network under Organization and Corporate Capabilities (Section 3.B of the Detailed Evaluation Criteria Components), the Evaluators were instructed to consider Sections D.19 through D.23 of the RFP, titled Overview of Prepaid Mental Health Plan; General Service Requirements; Medicaid Service Requirements; Additional Service Requirements and Minimum Access and Staffing Standards. The written instructions also directed the Evaluators to consider the following questions with respect to the proposed network: Are traditional community providers represented? Are rural areas sufficiently covered? Is there evidence that sufficient providers are available to cover the full range of required services? Are there innovations or does the vendor propose to expand the current provider community in a positive way? Has the vendor identified and responded to any gaps in the current system of care? Magellan's proposal devoted 24 pages to explaining its proposed network. It affirmed that a contract for inclusion in the network would be offered to all of the providers in Section 409.912(4)(b)(7), Florida Statutes. Magellan advised that it sent proposed letters of intent to all CMHCs in Area 9. It disclosed that two of the CMHCs (Oakwood Center of Palm Beaches and New Horizons of the Treasure Coast) had informed Magellan that they were "owners/partners" with a competitor for the RFP, but that it fully expected both entities to participate in the network should Magellan be awarded the contract. It also noted that it had an existing contractual relationship for commercial patients with one of the CMHCs. Magellan's response regarding this component was responsive to the RFP. Erica Carpenter gave both Lakeview and Magellan a score of 3 for this component. George Woodley gave both vendors a score of 4. Jill Sorenson gave Lakeview a score of 3 and Magellan a score of 2. Under Community Coordination and Partnerships (Section 3.E), the Evaluators were given the following written instructions: Consider: RFP, D. 22 Are there existing collaborative agreements with community partners? If not, what are the plans to develop collaborative agreements? Will the vendor facilitate development of a community system of care? Are there any innovative approaches in the vendor's plans for community involvement? With respect to Community Coordination and Partnerships, Magellan submitted a seven-page description of its relationships with community stakeholders, such as United Way; coordination of the partnership between Magellan and its providers; use of a database of community resources and other aspects of its proposed community coordination. Magellan's proposal for this component was responsive to the RFP. Erica Carpenter awarded both Lakeview and Magellan 3 points for Community Coordination and Partnerships. George Woodley awarded 4 points to each. Jan Sorenson awarded 4 points to Lakeview and 3 points to Magellan. Under Section 3.L (Contractor's and Subcontractor's Facilities and Network Management), the written instructions stated: The adequacy, accessibility and quality of the proposed plan facilities as indicated in the vendor's facility standards plan. Consider: * RFP, D.23, B., 5. * Is there evidence that the facilities are accessible to the disabled? For this category, Magellan made assurances that its subcontractors would meet the seven standards required by AHCA. Magellan provided its facility standards plan as well as its physical security facility assessment protocol for monitoring providers and subcontractors for compliance with these requirements. Magellan also described its credentialing process for providers, its custom of organizational site reviews and its plan for disaster preparedness. Magellan's proposal for this component was responsive to the RFP. Erica Carpenter awarded both Lakeview and Magellan 3 points for Contractor's and Subcontractor's Facilities and Network Management. George Woodley awarded 4 points each and Jan Sorenson awarded 3 points each. Finally, under Section 5. M. (Subcontracts/Provider Network), the written instructions provided: The quality, adequacy, acceptability and responsiveness of the vendor's protocol, policies and procedures for network management, including the types of providers selected, the selection process, and risk determination. Consider: RFP, C.20 What are the minimum criteria providers meet to be included in the network? How do the minimum criteria ensure providers are qualified to work with Severely and Persistently Mentally Ill and Seriously Emotionally Disturbed enrollees? For this category, Magellan provided certification of network provider eligibility, and samples of Magellan contracts for facility, group and individual providers. The proposal states in pertinent part: Partnership. The Magellan of Florida plan for network management is founded on our primary partnership with consumers, the Agency for Health Care Administration, (AHCA), and preferred providers Children's Home Society and Family Preservation Services of Florida, as well as a range of broader collaborative relationships with providers throughout Area 9. Our network will encompass all willing current Medicaid providers, ranging from major community provider agencies such as Oakwood Center of the Palm Beaches, New Horizons of the Treasure Coast, Healthy Solutions Resource Center, Suncoast Mental Health Center, South County Mental Health and Center for Child Development; to leading hospitals such as Fair Oaks Pavilion of Delray Medical Center, St. Mary's Medical Center, and Savannas Hospital; to specialty providers like Hibiscus Children's Center and Mutilingual Psychotherapy Centers. We will help them to continuously improve the quality of their efforts and to comply with State and Federal Medicaid requirements. (Emphasis supplied.) Magellan also provided a reference table that identified requirements under AHCA's contract and where those requirements are met in Magellan's contract and/or addendum. Again, Magellan's proposal with respect to this component was responsive to the RFP. Erica Carpenter awarded both Lakeview and Magellan 3 points for Subcontracts/Provider Network. George Woodley awarded 4 points each, and Jan Sorenson awarded 4 points to Lakeview and 3 points to Magellan. If only these four areas were to be considered, Lakeview's scores were higher than Magellan's for these components of the RFP. These, however, reflect only a portion of the elements to be considered in determining the winner of the contract award. Ultimately, Magellan's proposal received a higher overall score than Lakeview's when all components of the proposals were considered.
Recommendation Upon consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing Petitioner's Formal Written Protest. DONE AND ENTERED this 6th day of December, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 6th day of December, 2006.
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" day of le , 2013, in Tallahassee, Leon County, Florida. ‘LM, fo: ABETH DUDEK, SECRETA “Agency for Health Care Administration 1 Filed May 8, 2013 11:26 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Mario Rub, M.D. Pediatric Pulmonologist 20776 W. Dixie Highway Aventura, Florida 33180 (Via U.S. Mail) Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Willis F. Melvin Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Via Electronic Mail) Ken Yon, Acting Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) DOH (via email) License number ME69331 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the 5 day of By » 2013. —) Richard Shoop, Esqu: Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 ire STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH Case No.: 13-0129MPI AHCA CLI. No.: 12-1694-000 MARIO RUB, M.D., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “the Agency”), and MARIO RUB, M.D. (“PROVIDER”), by and through the undersigned, hereby stipulates and agrees as follows: 1. This Agreement is entered into for the purpose of memorializing the final resolution of the matters set forth in this Agreement. 2. PROVIDER is a Medicaid provider (Medicaid Provider No. 256291000) and was a provider during the audit period, September 1, 2008 to February 28, 2011. 3. In its final audit report (FAR) dated November 13, 2012 for the case referenced as C.I. No. 12-1694-000, AHCA notified PROVIDER that review of Medicaid claims performed by Medicaid Program Integrity (MPI) indicated that, in its opinion, some claims in whole or in part had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $14,039.92. In response to the FAR, PROVIDER filed a petition for a formal administrative hearing. It was assigned DOAH Case No. 13-0129MPI. 4. Subsequent to the original audit, and in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $5,752.06 plus $1,154.41 in fines and $1,659.66 in costs for a total due of $8,566.13. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA expressly agree as follows: (1) AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is five thousand seven hundred fifty-two dollars and six cents ($5,752.06) on the indebtedness, one thousand one hundred fifty-four dollars and forty-one cents ($1,154.41) in fines, plus one thousand six hundred fifty-nine dollars and sixty-six cents ($1,659.66) in investigative costs for a total of eight thousand five hundred sixty-six dollars and thirteen cents ($8,566.13). PROVIDER will make an initial payment of one thousand seven hundred thirteen dollars and twenty-three cents ($1,713.23) followed by eleven (11) monthly payments of six hundred two dollars and forty- eight cents ($602.48) and one final payment of six hundred two dollars and forty- six cents ($602.46). The first payment will be due beginning thirty (30) days after the Final Order date. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 12-1694-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. 6. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.J. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 7. 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 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. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $1,659.66 in Agency costs and $1,154.41 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. 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. 12. | 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. 13. 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 the AHCA other than as set 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. 14. 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 4 incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. 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. 16. | This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. 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. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK MARIO RUB, M.D. Printed Representativé$ Name BY. Nacio buh, 305 0060381 DEA BR 4969664 20776 W. DDGE HWY. AVENTURA, FL 33180 (905) 931-1812 + FAX (305) 931-1632 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Wl « CC mMmActeR General Counsel Aoegack dll Chief Medicaid Counsel hy. Willis F. Melvin, Jr. Assistant General Counsel Dated: Dated: Dated: Dated: Dated: 2| \3 , 2013 S/3 ,2013 r// 2 ,2013 3 5 2013 Februany LF ,2013 RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION GOVERNOR Better Health Care for all Floridians CERTIFIED MAIL No.:7009 2820 0001 5671 9368 November 13, 2012 Provider No: 2562910-00 NPI No: 1790889996 License No.:ME69331 Mario Rub, M.D. 20776 West Dixie Highway North Miami Beach, Florida 33180 In Reply Refer to FINAL AUDIT REPORT C.L: No. 12-1694-000 Dear Provider: ELIZABETH DUDEK SECRETARY 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 September 1, 2008, through February 28, 2011. A preliminary audit report dated July 16, 2012, was sent to you indicating that we had determined you were overpaid $279,132.60. Based upon a review of all documentation submitted, we have determined that you were overpaid $14,039.92 for services that in whole or in part are not covered by Medicaid. A fine of $2,807.98 has been applied. The cost assessed for this audit is $1,359.66. The total amount due is $18,207.56. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G- 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 $2,807.98 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. 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 2 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 Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules 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 DETERMINATION(S) 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. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment ofan illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, were insufficient to justify billing for code indicated. The documentation failed to meet the Medicaid criteria for medical necessity. The claims were either disallowed or adjusted by the peer to reflect service documented. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 173 claims was reviewed. For those claims in the sample, which have dates of service from September 1, 2008, through February 28, 2011, an overpayment of $846.51 or $4.89312139 per claim, was found. Since you were paid for a total (population) of 3,994 claims for that period, the point estimate of the total overpayment is 3,994 x 4,89312139 = $19,543.13. There is a 50 percent probability that the overpayment to you is that amount or more. We used the following statistical formula for cluster sampling to calculate the amount due the Agency: E- oe) ses 4 - -YB,y Where: N N E = point estimate of overpayment = SA, > B | Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 3 U F = number of claims in the population = s B is] A, = total overpayment in sample cluster B, = 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 = > A, > B, i=] j= t = t value from the Distribution of ¢ 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 $14,039.92, 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. If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $18,207.56, 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.J. 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 will 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. Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 4 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. Any questions you may have about this matter should be directed to: : Jennifer Ellingsen, Investigator, Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412- 4600, facsimile (850) 410-1972. Sincerely, Se Be Fred Becknell AHCA Administrator Office of Inspector General Medicaid Program Integrity FB/jse Enclosure(s) Copies furnished to: Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 5 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS 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. An explanation 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. Fora 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 8. A demand for relief. 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. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 256291000 - MARIO RUB Overpayment Calculation Using Cluster Sampling by Recip Name Dates Of Service: 9/1/2008 through 2/28/2011 Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Totals: 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 11/9/2012 COON ADH RWHNA 600 35 $1,083,860.97 3,994 $4.89312139 $19,543.13 $10,592,145.98 $3,254.56 $5,503.21 $14,039.92 33 FP NN FB HOMER ANNA aNWaAn = =a nN 173 Case ID: Confidence level: t value: $228.96 $145.15 $281.20 $121.92 $153.25 $68.64 $747.83 $228.96 $121.92 $168.96 $28,469.80 $76.70 $87.60 $236.70 $2,803.99 $229.95 $297.69 $171.41 $87.60 $129.39 $259.20 $3,257.45 $234.17 $87.60 $251.87 $75.97 $57.55 $34.32 $693.77 $87.60 $173.92 $87.60 $20,625.31 $121.92 $75.97 $60,981.84 Page 4 of 4 NPI: 1790889996 12-1694-000 95 % 1.690924 $0.00 $0.00 $117.70 $0.00 $0.00 $52.55 $194.73 $0.00 $0.00 $0.00 $126.76 $19.16 $0.00 $38.32 $0.00 $0.00 $38.30 $0.00 $0.00 $41.79 $54.28 $0.00 $68.75 $0.00 $0.00 $0.00 $0.00 $0.00 $94.17 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $846.51 Page 1 of 1) ( | SENDER: COMPLETE THIS SECTION ® Complete Items 1, 2, and 3. Also complete Htam 4 If Reatricted Delivery Is desired, @ Print your name and address on the reverse 80 that we can return the card to you. ® Attach this card to the back of the malipisce, ot aathn dront. Ihsvares. rete pew ™ Attach this card to the back of the mallplece, or on the front If space permits, 1. Article Addressed to: &. Hecwived by ( Printed Name) D. Is delivary address different from item 17 1 Yes IC YES, enter delivery address below: = No Mario Rub, M.D. '" 20776 West Dixie Highwa: . 'y 3. Service Type North Miami Beach, Florida 33180 Centtied Mat ©) Express Mail Cl. # 12+1694-000 JE-re Ci Regletered —-C) Return Recelpt for Merchandlee - D Insured Mall = 6.0.0, 4, Restricted Delivery? (Exira Fea) ves 2, Article Number Ganetertiomsoriceteboy 008 EBe0 OOOL Sb?) 53b8 PS Form 3811, February 2004 Domestic Return Recelpt 102595-02-M-1640 ; UniTeD States Postac SERVICE | } | | FI LORIDA AGENCY Fon SEAR CORE 2727 Mahan Dri ve, MS #6 Tallahassee Florid; Medical Unit 052308 Falbssh locas dasbaldadaElbasbeadashatbnllaht i i { { i ' ‘ i Englion Customer Service &4aUSPSCOM Quick Tools Track & Confirm YOUR LABEL NUMBER | 7o097820000188719388 i Check on Another Item What's your label (or receipt) number? LEGAL Privacy Policy » Terms of Use > FOIA> No FEAR Act EEO Oata > OTHER USPS SITES. ‘Business Custamar Gataway > Postal inspectors » Inspector General » Postal Explorer > Copyright® 2012 USPS. AN Rights Raservad. 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Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1. The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $100.00 within 30 days of the entry of this Final Order. A check made payable to the “Agency for Health Care Administration” containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this 7) day of Deeerber , 2011. © be ge oan cret 1 Administration 1 Filed December 8, 2011 3:10 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this ge day of _/f A _, 2011. Richard Shoop, Agency Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Roger Bell Health Care Clinic Unit Manager Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) Zachary B. Buffington, Esquire Florida Bar No. 0087748 Williams Parker Harrison Dietz & Getzen 200 South Orange Avenue Sarasota, Florida 34236 (U. S. Mail) Warren J. Bird, Asst. General Counsel Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) | lizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) 08/16/2011 TUE 16:05 PAX Wo11/ 027 FROM ‘NEUROMUSCULAR THERAPY CENTER FAX NO. 1941-926-3342 Jul, 29 2011 @1:4 RICK SCOTT eaetter Heat car forall Flridans BUZARETH DUDEK GOVERNOR fore SECRETARY CERTIFIED MAIL / RETURN RECEIPT REQUESTED July 28, 2014 Nouromusculge Therapy Center Inc Liconse Number: Po Box 1922) Case #; 2011 00 8175 Certified? Article Number SENDERS RECORD PUIG 9008 9411 4739 £330 | FURTHER REVIEW Your appllcatipn for licanse Is deemed Incomplete and withdrawn from further consideration pursuant to Section 408,806(3)(b), Florida Statutes, which states that “Requested Information omilted from an application for llcensure, liesnse renewal, or change of ownership, other than an Inspection] must be filed with the agency within 24 days after the agenoy's request for omitted Information or the application shall be deemed Incomplete and shall bs withdrawn from further consideration and the fees shall be forfeited”. You wore notified by correspondance dated July 6, 2011 to provide further information addressing Idpntified apparent errors ar omisatons within twenty-one days from the recelpt of the Agency's correspondence. Our records indicate you tacelved this correspondence by certified mail bn July 14, 2011. The Agency recelved your response to this requested Information on July 18, 2071. After careful review of your responge, your applicatian Is‘ deemed incomplete and withdrawn from further consideration. The outstanding Issues remaining for licansure are Medical/Ciinfe Director - The Medical/Clinic Director listed on the appiication ie not a qualified health care plofessional, You falled to provide the required licensure by the Florida Department of Health on the appileation. (AHCA Form 31 40-0013 July 08; Rute 69A-33.002 (1), F.A-. and 400,991 (3), F-S.) Finanglal Officer - No financial officer was listed on the application, You must furnish the full name, complete residence and business address, telephone number, and positlonititle for the Financial Officer. (AHCA Form 3110-0013 July 06; Rule 69A-33.002 (1), FAC.) Backgroun Sereaning — You falled to provide evidence of Level Hl background screening for the followinglindividual(a); & Van Vyven, Kathleen Gorman, Gregory Wlegers and Susan Peace. cement — Visit ANCA online at 2727 Mahan Prive, MS-53 Tallahassee, Fiogida 32308 ahco.myflorida.com 08/26/2011 TUE 16105 FAX FROM :NEUROMUSCU! : ULAR. THERAPY eee eT CENTER FAX ND. $941-926-3342 ha ul, 29 2041 1341 T41PM PS Neuromusoular' nerapy Center Inc Page 2 July 26, 2017 alive tearing. 1 o Section 420.589, F.S., YO ding before the Division of Administrative Hearings under Section the requirements in order to obtain a formal proceeding dminietrative hearing must co ), and must state the material facts you 420.87(4), Fog YOur request for an & Section 28-196.201, Florida Administrative Code (F.A.C). an dispute. SEB ATTACHED ELECTIO! Pursuant | AND EXPLANATION OF RIGHTS FORMS. lanage Clinic Unit ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mall Stop 3 @o12/027 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION NEUROMUSCULAR THERAPY CENTER INC., Petitioner, FRAES No.: 2011008175 vs. Case No. 11-04459 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The Petitioner (“the Applicant”) and the Respondent (“the Agency”) voluntarily enter into this Settlement Agreement (“Agreement”) and agree as follows: 1. Parties/Background. The Applicant filed an application seeking licensure within the jurisdiction of the Agency. After initial review, the Agency issued the Applicant a Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review (“NOI”). The Applicant has since tendered to the Agency additional information and/or documentation in support of the application, which the Agency is willing to review. 2. Purpose and Effect of Settlement. Both parties wish to resolve this case without further litigation and recognize that by entering into this Agreement, both are expressly waiving their right to any legal proceeding they are entitled, including, but not limited to, formal and informal proceedings under Section 120.57, Florida Statutes, and appellate review. Both parties consent to the withdrawal of any request for formal or informal hearing if such a request has been made, as well as the relinquishment of jurisdiction of the informal hearing officer or administrative law judge. 3. Resumption of Application Review. The parties agree that this Agreement shall supersede the NOI and that the application will no longer be deemed to be incomplete and withdrawn from further review and the NOI is deem deemed superseded by this agreement . If the Agency has not already completed its review of the application, it shall resume its review of the application upon entry of the Final Order adopting this Agreement. Nothing in this Agreement, however, shall prohibit the Agency from denying the application based upon any statute, rule, or regulation, and, if applicable, an unsatisfactory licensure survey. 4. Administrative Fee. The Applicant agrees to pay the Agency an administrative fine of ($100.00) within 30 days of the entry of the Final Order. 5. Release. The Applicant releases and forever discharges the Agency, its employees and agents, both past and current, from any and all claims, including, but not limited to, damages, attorney’s fees and costs, arising from or relating to the issuance or litigation of this NOI. 6. Costs and Attorney’s Fees. Each party shall bear their own costs and attorney’s fees. Page | of 2 EXHIBIT 2 FROM :NEUROMUSCULAR THERAPY CENTER FAX NO. :941-926-3342 Oct. @5 2011 89:18AM PZ OCT-@5-2811 18) AHCA paz GENERAL COUNSEL OFFI 850 413 5313 P.e3 O42 miei te. Counsel. The Applicant acknowledges the right to retain independent counsel and has either o! its own counsel or voluntarily waived the right to counsel. The Applicant further acknowledges that Agency counsel represents solely the Agency and that Agency counsel has not previded any legal advice to, or influenced, the Applicant in the voluntary decision to enter into this Agreement. _ & Agreement. Thi: Agreement contains the entire understandings of both parties. This Agreement supersedes any prior oral or written agreements thet may have existed between tho parties, This ent may not be amended by either party except in writing. 9 of Agreement. Both parties agree that an electronic signature suffices for an cal shut htm ene o fine copy efi ania ees a tht i Agreement may be executed in counterparts. This Agreement shal] be effective upon full execution by all parties and adoption into a Final Order. After full cxecution of this Agreement, the Agency will enter a Final Order adopting this Agreement and closing the case. . The following representatives have read and understand this Agrecment, are signing it freely and voluntarily, and ainowledge that they are authorized to enter into this Agreement. f. Bew ny B n, oe Florida Bar No. 0087748 Williams Parker Harrison Dietz & Getzen 200 South Orange Avenuc Sarasota, Florida 34236 DATED: 12 “/7 “h 2727 Maban Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: |° il aan Page 2 of 2 TOTAL P.@3
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 This consolidated proceeding involves protests by Prison Health Services, Inc. (“PHS”), Physician Healthcare Plans, Inc. (“PHP”), and Wexford Health Sources, Inc. (“Wexford”), contesting notices of intended decisions to award contracts posted by the Florida Department of Corrections ("Department") following review and evaluation of proposals submitted pursuant to the Department's Request for Proposals No. 00-DC-7342, “Comprehensive Healthcare at Twelve Institutions in Region IV” (“RFP”). Pursuant to Section 120.57(3)(f), Florida Statutes (2000), the Administrative Law Judge is to conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the proposal specifications.
Findings Of Fact Stipulated facts In their Prehearing Stipulation filed on March 13, 2001, the parties stipulated that the following facts were admitted to by all parties and were to be taken as true without the need for further proof: The Department issued request for proposals 00-DC-7342 for Comprehensive Healthcare Services at Twelve Correctional Institutions in Region IV (the “RFP”) on or about September 1, 2000. The RFP divided Region IV into an East Cluster and a West Cluster and permitted the Department to award separate contracts to separate vendors for each cluster or both clusters to a single vendor. CMS, PHP, PHS, and Wexford each submitted a timely proposal to the RFP. The proposals submitted by CMS, PHP, PHS, and Wexford are submitted as Joint Exhibits 5-12. The Department concluded that each proposal was responsive to the RFP. Each proposal was scored by the Department’s technical evaluation committee. The RFP specified separate price and technical proposal scores. The technical evaluation scores were determined by an evaluation team and a certified public accountant retained by the Department to evaluate financial documentation submitted by the proposers (See Joint Exhibit 27 for identity of members of evaluation team). The Department’s evaluation team scored the proposals (except for financial components) and awarded points, for both East and West Clusters, in the areas of Corporate Qualifications, Project Staff, and Service Delivery Approach. A certified public accountant evaluated and scored the financial information submitted by each proposer. The price scores were awarded pursuant to a numerical formula. The RFP specified 1000 points as the highest possible score. The RFP specified 550 possible Cost Proposal Points and 450 possible Project Proposal Points. The Department evaluators used information set forth on the scoring sheets and the Proposal Evaluation Manual which are Joint Exhibits 4 and 13-19 during their evaluation of the proposals. The Department evaluators assigned scores to each of the questions found on the scoring sheets. The Department then determined the numeric average of the scores assigned by the evaluators. Those average scores for each question were multiplied by weights assigned to each question by the Department to derive a final score for each question. Those scores were summed and then added to scores assigned by Mr. Law [the CPA retained by the Department] based upon his review of Financial Documentation required by Section 5.3.1 of the RFP. The RFP required the vendors to specify a per inmate per diem cost price. For the West Cluster, the Final Project Scores are as follows: Cost Proposal Points Wexford: 550.00 PHP: 539.65 PHS: 463.09 CMS: 457.29 Project Proposal Points Wexford: 407.97 CMS: 405.29 PHS: 445.1 PHP: 360.84 Vendor Total Calculations Wexford: 957.97 PHS: 908.19 PHP: 900.50 CMS: 862.58 For the East Cluster, the Final Project Scores are as follows: Cost Proposal Points Wexford: 529.57 PHP: 550.00 CMS: 521.89 PHS: 483.19 Project Proposal Points Wexford: 407.97 CMS: 405.29 PHS: 445.1 PHP: 360.84 Vendor Total Calculations Wexford: 937.54 PHS: 928.29 CMS: 927.18 PHP: 910.85 On or about December 11, 2000, the Department posted a notice of intent to award the West Cluster to Wexford. On the same day, with regard to the East Cluster, the Department posted a notice of intended decision to negotiate with each proposer, in descending rank order, based on each vendor's combined price and technical evaluation scores. The descending order for the East Cluster vendor negotiations was Wexford, PHS, CMS, and PHP. On January 2, 2001, at 3:15 p.m., the Department posted its notice of intended decision in the East Cluster; the notice provides that CMS is the intended recipient of the East Cluster. On or about January 23, 2001, the Secretary of the Department executed a document entitled “Agency Statement Supporting Continuation of Bid Solicitation Process or Contract Award Process” (“Agency Statement”). The geographic service area approved by the Agency for Health Care Administration for PHP does not include Desoto, Hardee, Hendry, Indian River, Martin, or Okeechobee Counties. From the time PHP submitted its proposal to the present, Bruce L. Carpenter has never been licensed by the Florida Department of Insurance as a health insurance agent. PHP has not made any filings with the Florida Department of Insurance pursuant to Section 641.31, Florida Statutes, seeking approval of its rates or rating methodologies for the proposed contract with the Department of Corrections. PHP is the only proposer which holds a valid Certificate of Authority issued by the Florida Department of Insurance for the operation of an HMO. Facts proved at hearing The RFP was issued at the express direction of the Florida Legislature to privatize health care services in Region IV. (See Chapter 00-166, Laws of Fla. (2000), proviso language accompanying specific appropriations 737 through 750.) The Legislature required the Department to retain a contractor to provide such services at a cost savings when compared to the Department's fiscal year 1999-2000 expenditures for providing those services in-house. The RFP bears out this Legislative instruction in Section 2.2 of the RFP: Proposals are to be submitted by qualified vendors who will be required to provide services at a cost saving when compared to the Department’s actual FY 1999-2000 healthcare expenditures as shown in Composite Attachment 9. The referenced Composite Attachment 9 revealed that the Department’s cost of providing health care averaged $8.00 per inmate per day in the West Cluster, and $13.24 per inmate per day in the East Cluster. The RFP established the qualification of vendors to submit a response based on prior experience. That requirement was that the vendor must have provided comprehensive health services to at least 9500 “clients” for at least three of the last five years. The RFP did not require that any of such services had to have been performed in the State of Florida. The RFP does not contain any language that would reasonably put a vendor on notice that competition was limited to licensed HMOs. The RFP does not contain the phrase “Health Maintenance Organization” or the abbreviation “HMO”. The RFP contains the following statement: Florida law mandates that all Medicaid recipients, with certain exceptions, be enrolled in a managed care plan. While it is recognized that inmates are not Medicaid recipients, the Department does expect the Contractor(s) to apply the principles of managed care in the treatment of inmates in Region IV. Currently, many aspects of managed care are being utilized in the correctional healthcare delivery system throughout the state including, but not limited to, pre-hospital admission certification, continued stay review, retrospective admissions review, ambulatory surgery and discount contracting for specialty medicine and diagnostic care. However, the Department is looking to the private sector with its flexibility, purchasing power, business acumen and innovation to apply these principles of managed care in Region IV at a cost saving to the State of Florida while maintaining a minimal constitutionally adequate level of care for the inmates. (Emphasis added.) No other provision of the RFP addresses managed care. The RFP also contains the following language: Applicable provisions of all Federal, State, county and local laws, and of all ordinances, rules, and regulations shall govern development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a proposal response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or any person, natural or otherwise; lack of knowledge by any proposer shall not constitute a cognizable defense against the legal effect thereof. * * * The Contractor and the Department shall work cooperatively to assure a high standard of service delivery and compliance with all Federal, State of Florida and Department laws, statutes, rules, policies and procedures. Each of the proposers was afforded the opportunity to submit questions to the Department concerning the RFP requirements prior to submitting a proposal. In that process, CMS posed the following question and received the following response from the Department: Question: Are there any licensures or certificates that will need to be secured or maintained in order for us to deliver the services during the contract? Answer: Whatever is required by the State of Florida for health care providers. If any others are required it is the vendor’s responsibility to meet all such requirements. Pursuant to the RFP, the contractor providing these comprehensive health care services will be paid a fixed monthly sum, and nothing more, regardless of the actual cost incurred by the contractor to render any necessary services for the applicable prison inmate population. In other words, the contractor will be “at risk” with regard to whether or not it achieves financial profits or losses under the contract. As stated in the RFP: The Contractor in each cluster will be completely and totally responsible for the cost of all healthcare delivered to inmates in their respective cluster institutions. There will be no stop/loss provision for hospitalization or any other care. The RFP at Section 7.4.2 provides: “[t]he contractor agrees to request compensation on a monthly basis through submission to the Department of a properly completed invoice within fifteen (15) days following the end of the month for which payment is being requested. . . .” Payment under the contracts contemplated by the RFP is based on the average daily population (“ADP”) of inmates at an institution for the preceding month times the per diem rate in the contract. In all instances the contractor will be paid for services provided during a specific month at some time after the services have been performed. Under the prison health services contracts that will result from the RFP, the contractor will not be “prepaid” for the services it performs for the Department. The Department knew that its current contractors for similar health care services were not licensed as HMOs. The Department has never previously contracted with an HMO for inmate health services. The Department had no intention to eliminate its current contractors from competition for the subject contracts. The services contemplated under the RFP, health care services for Department inmates, do not include certain benefits and protection afforded “enrollees” under the State’s Health Maintenance Organization laws. The "Comprehensive Health Care Services" sought by the instant RFP are described in the RFP as follows: “Provision of medically necessary and appropriate health care to meet the minimal adequate constitutional level established by federal law. This includes physical, dental and mental health care both on site and off site.” The scope and nature of the health care services described in the RFP is a lesser level of care than that mandated by the Florida HMO Act. As noted in the Department of Insurance Consumers Guide, HMOs must provide a broad range of coverages and HMO subscribers have numerous rights inconsistent with the rights of inmates to receive health care in a prison setting, such as: (1) the right to receive a contract, certificate or member handbook clearly stating services and limitation of membership; (2) the right to convert from a group to an individual contract if the group contract is canceled; (3) the right to fair rates—HMOs are prohibited from charging rates that DOI deems excessive, inadequate or discriminatory; (4) the right to receive a list of all hospitals and primary care physicians employed by or under contract with the HMO; (5) the right to a second medical opinion; (6) the right to a 45-day notification before a contract is canceled or non-renewed; the right to appeal to the Statewide Provider and Subscriber Assistance Program Panel; and (8) the right to receive a converted contract if coverage has been continuous for at least three months. These "rights" exceed the minimum constitutionally required standard of care to which prison inmates are entitled, and are not rights otherwise available to prison inmates. Section 6 of the RFP states, in part: “Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the Department, taking into consideration the criteria set forth in the RFP.” (Emphasis added.) Section 6 continues: “The Department reserves the right to make an award with or without further negotiations with the highest scoring proposer.” Section 4.3.11 of the RFP, as revised by Addendum 1, specifically prohibits proposers from communicating with the Department regarding cost at any time prior to the posting of a notice of intended award. “Any discussion by the proposer with any employee or authorized representative of the Department involving cost information, occurring prior to the posting of the recommended award will result in rejection of said proposer’s proposal.” And paragraphs 6.4, 6.5, and 6.6 of the RFP add the following provisions regarding the selection of the successful proposer: Final Proposal Scores/Total Points Scored The points awarded for the Business/Corporate Qualifications, Project Staff and Service Delivery Approach categories will be totaled and added to the points awarded for the Cost Proposal to determine the final scores of all proposals. Identical Tie Proposals In the event of an identical tie in the evaluation scores of proposals from this RFP, preference will be given to businesses with drug free workplace programs. Attachment 6 describes such programs and how proposers may obtain this advantage. Final Determination In the event that the Department receives identical evaluation scores from two or more responsive proposers with drug-free workplace programs, the final determination of the award shall be decided through the toss of a coin in a public meeting. The RFP described the evaluation process for the proposals. The evaluation criteria for the proposals included two categories for which no points would be awarded to proposers: Mandatory Responsiveness Requirements, and Transmittal Letter and Executive Summary. The other four review categories would be scored, resulting in scores being assigned up to a maximum possible score of 1,000 points, as follows: Category 1 Business/Corporate Qualification 100 points Category 2 Project Staff 100 points Category 3 Service Delivery Approach 250 points Category 4 Cost 550 points The RFP explained that an Evaluation Committee would be established to score the proposals on Categories 1, 2, and 3 above. The scoring system for these three categories was a curved system designed such that the vendor receiving the highest number of points in a given category would be awarded the maximum score (100 or 250) for that category, and the other, lower scoring vendors would receive proportionally fewer points. Section 5.11.1 of the RFP requires the submission of a sealed cost proposal. That section of the RFP goes on to provide that the cost proposals "should be submitted with the most favorable terms the proposer can offer." The cost proposals were to be separately scored by Department staff, separate and apart from the scoring of the project proposals. The lowest per diem rate offered by any vendor in each of the two clusters would be awarded 550 points, with the other vendors’ higher per diem rates assigned proportionally fewer points based on a formula contained in the RFP. Section 6 of the RFP further informs the proposers that the “factors to be considered” by the evaluators in scoring the “Business/Corporate Qualifications, Project Staff and Service Delivery Approach sections” of each proposal “are listed in Attachment 8” to the RFP. Attachment 8 to the RFP is titled: “Evaluation Criteria for Project Proposal.” When the RFP was initially issued on September 1, 2000, Attachment 8 listed evaluation criteria for each of the proposal areas (Corporate Qualifications, Project Staff, and Service Delivery Approach) to be evaluated. Section 4.3.8.2 of the RFP notified each proposer of its responsibility to assure that the RFP requirements were clearly stated and to request changes if they were not. RFP Section 4.3.8.2 (“The proposer shall examine this RFP to determine if the Department's requirements are clearly stated.”) Unless a proposer requested changes, it was deemed to have accepted the specifications. Submission and Evaluation of Proposals In response to the RFP, four vendors – Wexford, CMS, PHP, and PHS – submitted proposals. The Department assembled a team of seven Department employees to evaluate and score the project proposals in the areas of Business/Corporate Qualifications (except as to financial statements submitted by the vendors), Project Staff, and Service Delivery Approach. The evaluators received instructions from the Department’s Bureau of General Services staff on how to evaluate the proposals and assign scores. The evaluators were given a Proposal Evaluation Manual designed specifically for this solicitation. The Evaluation Manual identified six criteria for each evaluator to assign a score for each vendor’s Business/Corporation Qualifications; eighteen criteria for each evaluator to score for Project Staff; and thirty-four criteria for each evaluator to score for Service Delivery Approach. A portion of the scoring of the "Business/Corporate Qualifications" section of the proposals was performed by Richard Law, a certified public accountant in private practice retained by the Department to assist with several competitive solicitations that the Department was pursuing. Before the September issuance of the RFP, Mr. Law drafted what he considered fairly "generic" requirements for financial documents to be submitted by vendors with their proposals. The financial statement evaluation accounted for 40 of the 100 points available for Business/Corporate Qualifications. Mr. Law allocated the 40 points among six review criteria devised by him. A possible 28 of the 40 points were assigned to Mr. Law's review of the auditor’s report on financial statements for an opinion without qualification or adverse comment (8 points); review of the auditor’s letter to management for no material weaknesses in internal controls (10 points); and review of the audited financial statements for no indication of a "going concern" problem (10 points). Mr. Law also allocated up to four points each to three "ratios" calculated from information in the vendor’s balance sheet; a current ratio, an acid-test ratio, and a debt-to-equity ratio. Mr. Law was provided with a copy of each vendor’s entire proposal for scoring. Employing the six criteria devised by Mr. Law, an accountant in Mr. Law’s firm calculated scores for those criteria for the four vendors, which Mr. Law reviewed and adjusted slightly to the following: PHP, 39; CMS, 38; PHS, 37; and Wexford, 32. Mr. Law filled out a single evaluation sheet for each vendor covering all six of his review criteria, and returned them to the Department. At that point, Mr. Law believed his involvement in this RFP was done. Scores Assigned Mr. Law’s scores were added to the criteria weighted scores assigned by the Department Evaluation Committee members in the area of Business/Corporate Qualifications. This resulted in a total weighted score for each of the vendors in the area of Business/Corporate Qualifications. Pursuant to Section 6.3.1 of the RFP, the vendor with the highest total weighted score in the Business/Corporate Qualifications received a score of 100, and the other vendors received a proportionally lower score, as follows: CMS, 100.00; PHS, 98.85; Wexford, 92.27; and PHP, 85.94. Scores were assigned to the vendors for the eighteen criteria for Project Staff in much the same way, except without scores from non-Department employees such as Mr. Law. After determining total weighted scores for each vendor in this area, and assigning 100 points to the highest scoring vendor, the final Project Staff scores were: PHP, 100.00; PHS, 96.25; Wexford, 88.75; and CMS, 85.95. Similarly, scores were assigned to vendors for the thirty-four criteria for Service Delivery Approach, again without scores from non-Department employees. The total weighted scores for the four vendors in this area were adjusted to give the highest scoring vendor 250 points, with the other vendors receiving proportionately fewer points, as follows: PHS, 250.00; Wexford, 226.95; CMS, 219.34; and PHP, 174.90. Adding the adjusted scores for each of these first three criteria together for each vendor produced a final "project proposal" score, out of a maximum possible 450 points, as follows: PHS, 445.1; Wexford, 407.97; CMS, 405.29; and PHP, 360.84. The scoring of the vendors’ cost proposals was accomplished as follows: Within each cluster, the vendor offering the lowest per diem rate received the full 550 points, and the vendors offering higher per diem rates received proportionally lower scores, as described in Section 6.3.4 of the RFP. In the West Cluster, Wexford offered $7.30; PHP, $7.44; PHS, $8.67; and CMS, $8.78. These rates translated into adjusted cost proposal scores for the West Cluster as follows: Wexford, 550.00; PHP, 539.65; PHS, 463.09; and CMS, 457.29. For the East Cluster, the per diem rates proposed were PHP, $12.44; Wexford, $12.92; CMS, $13.11; and PHS, $14.16. [Jt. Exhs. 6, 8, 10, 12] These rates translated into adjusted cost proposal scores for the East Cluster as: PHP, 550.00; Wexford, 529.57; CMS, 521.89; and PHS 483.19. A total score was arrived at for each vendor in each cluster by adding the vendor’s "project proposal" adjusted score to its "cost proposal" adjusted score for that cluster. The total scores for the West Cluster were: Wexford, 957.97; PHP, 900.50; PHS, 908.19, and CMS, 862.58. For the East Cluster, the final totals were: Wexford, 937.54; PHS, 928.29; CMS, 927.18; and PHP, 910.85. Notwithstanding the prohibition in Section 4.3.11 of the RFP, PHS faxed a three-page letter to the Secretary of the Department, Michael Moore, six days before the posting of the recommended awards for the East and West Clusters on December 11, 2000, but after the proposals had been opened. PHS did not give notice of this communication to any other proposer. The essence of the information in the PHS letter was that PHS had erred in calculating its cost proposal, that PHS had erred by including costs that the RFP did not require, and that PHS wanted an opportunity to lower its price. The obvious purpose of the letter was an effort to affect the Department's decision- making process and to give PHS an advantage not enjoyed by other bidders. Mr. Law’s Second Review According to the date Mr. Law signed his scoring sheets, his scoring of the financial statements from the proposals was completed November 22, 2000. The RFP, as revised by the Department’s addendum had established an anticipated date for the "Posting of Recommended Award/Notification to Proposers" of Monday, December 11, 2000. Shortly before the anticipated posting date, however, Richard Prudom, the Department’s Deputy Director of Administration, called Mr. Law and asked him to perform additional analysis regarding the financial capability of the vendors. This was reduced to writing in a letter faxed to Mr. Law on Wednesday, December 6, 2000. Omitting the formal parts, the letter read as follows: Thank you for your financial evaluation of the bids submitted in response to the Requests for Proposals for the delivery of comprehensive healthcare to inmates in Region IV. The evaluations were an integral part of the corporate qualifications section of the project proposal scoring process. With the evaluation process now complete the Department is ready to award contracts for the delivery of services of which the anticipated value is approximately $17 million for the West cluster of Region IV and $41 million for the East cluster. Since the Department has an obligation to award contracts that are in the best interests of the State of Florida, what further commentary/analysis could you provide regarding the ability of each proposer to fulfill the obligations of contracts at those anticipated values? Your assistance in this matter is appreciated. In response to the request for additional comments and analysis, Mr. Law reviewed the financial materials submitted by each of the proposers in light of the anticipated dollar values of the contracts for each cluster. He then made calculations comparing the 1999 health care revenue for each of the proposers to the anticipated dollar values of the contracts for each cluster. On December 8, 2000, Mr. Law sent a letter by fax to the Department containing a table demonstrating the comparisons he had calculated, as well as some additional comments. The additional comments in Mr. Law's letter of December 8, 2000, included the following: In my judgment, a proposer in the healthcare industry is more likely to fulfill all of the terms and conditions of the proposed contract if the dollar value of the contract is within a reasonable range of its existing level of operations. * * * The burden of fulfilling the terms and conditions of the contract will obviously be much greater for Wexford than the other three vendors because of the relative impact of adding 24.6% (for $17 million) or 59.4% (for $41 million) more in services than they provided in 1999. * * * Wexford does not currently perform any services in Florida, whereas the other three providers already provide a substantial amount of services in Florida. Since they have no management or staff in place in Florida, and considering the impact of fulfilling a $17 million or $41 million contract relative to their existing revenue base, the risk of failure is high. The comments and analysis set forth in Mr. Law's letter of December 8, 2000, do not address any of the criteria in the RFP on which Mr. Law relied when he performed his original scoring of the financial documents of each proposer. Rather, his comments and analysis in the December 8, 2000, letter are predicated on two criteria that do not appear in the RFP. In this regard, it it significant to note that in response to the Department's request for additional comments and analysis, Mr. Law did not suggest that any changes should be made to his earlier assignment of scores to each of the proposers. This is no doubt due to the fact that the criteria upon which Mr. Law based his December 8, 2000, comments are criteria that do not appear in the RFP, and the December 8 comments, even if correct, would have no bearing on the scores assigned to the proposers pursuant to the criteria that are included in the RFP. Based upon the letter written by Richard Law, the Department decided by December 11, 2000, that Wexford would not be awarded the East Cluster contract. Notably, December 11 was the day on which the Department posted its notice of intent to negotiate for the East Cluster contract, identifying Wexford as the first vendor with whom it would negotiate. In effect, based on Richard Law’s letter of December 8, 2000, Wexford was disqualified from being eligible to propose on the East Cluster. This occurred even though pursuant to the terms of the RFP Wexford was clearly a qualified and responsible bidder for that contract under the terms of the RFP. Mr. Law acknowledges that he has no understanding of the correctional health care industry, or of what it would take for a vendor to perform a contract for health services in a correctional setting. Rendering an opinion on the impact of a new contract on a company would require an understanding of how the business works, not just the amount of revenue the contract would generate. An analysis of a vendor’s ability to perform this contract which is based on existing and anticipated revenues is not a meaningful or relevant analysis. A more useful analysis would compare the number of inmates and number of institutions covered by the contract to the vendor’s existing level of service. Such a comparison in Wexford’s case shows that Wexford is already performing contracts in other states that cover a comparable or greater number of inmates and a comparable or greater number of prisons. Posting of Awards and Decisions On December 11, 2000, the Department posted a Notice of Intended Award for the West Cluster contract, indicating its intent to award that contract to Wexford. The Department also posted on that date a "Notice of Intended Decision" for the East Cluster, stating its intent to negotiate. The East Cluster Notice identified an order of negotiation that tracked the final scores in the East Cluster: Wexford, then PHS, then CMS, then PHP. The only written information the Department provided to the vendors concerning the negotiations was contained in its Notice of Intent to Negotiate. The East Cluster notice contained the following description of the negotiation process: Pursuant to the provisions of the State Purchasing Rule 60A-1.002, F.A.C., the Department of Corrections announces its intention to negotiate a contract for the East Cluster service area. The Department intends to negotiate with the highest- ranking proposer. If no contract is successfully negotiated with this proposer, the Department will proceed to the next highest-ranking proposer. If no contract is successfully negotiated with this proposer, negotiation will continue with the third- highest and then fourth-highest ranking proposer, as necessary. In other words, the negotiations were to be sequential rather than concurrent, and would be exclusively with the highest- ranked vendor until it was determined that a contractual agreement could not be reached. The Department issued no further written information concerning the negotiation until it issued its notice of intent to award the East Cluster contract to CMS on January 2, 2000. Prior to commencing the negotiations, the Department instructed one of its employees to contact each of the four proposers and tell them the following. That negotiations had to be concluded on December 15: That each vendor had not more than 2 hours to conclude negotiations; That if negotiations concluded with a vendor without an agreement, such vendor would not be given another chance to negotiate with the Department for the East Cluster. The greater weight of the evidence is to the effect that the Department's employees failed to advise any of the four proposers of the negotiation rules described immediately above at any time prior to the negotiations. During the negotiations none of the proposers were advised of the negotiation rules. The Department never provided written notice of the negotiation rules to any of the proposers. The "negotiations" referenced in the December 11 East Cluster notice were scheduled for Friday, December 15, by telephone. The Department scheduled conference calls with three of the four vendors for December 15, commencing with Wexford at 9:30 a.m. The Department apparently intended to conclude the negotiations in a single day, although this intent was not communicated to the proposers. Wexford attempted to obtain information from the Department in the days leading up to the December 15 conference call as to an agenda for the call or subjects to be discussed or negotiated, in order to be better situated to promptly respond. The Department provided no information other than the identity of its "negotiation team": Mr. Prudom, Ms. Bassett, and Deputy Secretary Michael Wolfe. Following introductory comments, the Department’s call to Wexford began with the Department's notifying Wexford that Wexford would not be awarded the East Cluster contract, despite the December 11 East Cluster notice that ranked Wexford first. When pressed for an explanation, the Department responded that a CPA retained by the Department to review the proposals had expressed concern over Wexford’s financial capabilities. This was apparently a reference to the December 8, 2000, letter from Mr. Law to Mr. Prudom. The Department refused Wexford’s request to submit documentation to respond to those concerns. At some point during the conference call with Wexford, Deputy Secretary Mike Wolfe requested that Wexford’s representative, Mr. Matonte, engage in a one-on-one telephone conversation with him. Mr. Matonte did so, at which time Mr. Wolfe made it clear that Wexford was not going to receive the East Cluster contract, and that Wexford needed to stop contesting the Department's position if it wanted to receive the West Cluster contract. This conversation took place at about 10:00 a.m. on Friday, December 15, and Mr. Wolfe gave Wexford until noon to give him a response. If Wexford did not respond, then Wolfe indicated Wexford would end up with nothing. Following the conference call with Wexford, the Department had conference call sessions with PHS and then with CMS. In both of those sessions, the Department invited those vendors to lower their per diem rates offered for the East Cluster. The negotiations effectively ended on the afternoon of December 15, when Mr. Wolfe, Ms. Bassett, and Mr. Prudom made the decision to award the East Cluster to CMS, but Mr. Wolfe continued to negotiate with PHS for most of the week following December 15, 2000. These negotiations culminated in PHS’s written “best and final offer” on December 21, 2000, at which time PHS offered a price of $13.17. By then, the Department had already decided to award the East Cluster contract to CMS. Most of the negotiations between PHS and Mr. Wolfe occurred after the Department commenced negotiations with the third-ranked vendor, CMS, and after the Department had already decided to award the East Cluster contract to CMS. This course of conduct by the Department was inconsistent with the negotiation rules the Department purports to have applied to the negotiation process. A notice of intent to protest had been filed by PHP, the fourth ranked bidder in the East Cluster, on December 12, 2000. The Department made the determination that the bid procurement should continue and ultimately set forth facts and circumstances in writing to support that determination in an Agency Statement signed by the Secretary. On January 2, 2001, the Department posted notice of its intent to award the contract for the East Cluster to CMS. On January 8, 2001, PHP amended its Initial Protest to contest the Department's continuation of the procurement process subsequent to PHP’s initial petition. Wexford History and Experience Wexford was founded in 1992 as a service company providing health care in correctional settings. Wexford is one of the three largest companies nationally performing correctional health care, along with CMS and PHS. Wexford’s officers and key employees have extensive experience in health care in Florida and in correctional health care in Florida and throughout the nation. Wexford’s CEO, Kevin Halloran, has been with Wexford since its inception, and prior to Wexford’s founding had health care experience in the U.S. Army Medical Corps and, beginning in 1971, the nursing home business in Florida and the hospital rehabilitation business in Florida and nationally, for a total of 36 years in health care. Wexford’s Vice President of Business Development, Bob Matonte, has over 25 years' experience in health care management and delivery, both clinically and administratively, including 3 years overseeing health care delivery in the Broward County jail immediately before joining Wexford in 1992. Wexford’s Regional Manager for this project, Kathy Harkis, has 30 years' experience in health care, including 19 years (since 1982) in correctional health care, the last 5 of which have been in Florida. Wexford’s Medical Director for this contract, Gary Schecodnic, M.D., served as medical director for state prisons and county jails in Florida for over 12 years, from 1987 to 1999. Wexford’s first contract for correctional health care was for prisons in the state of Illinois, with a population of about 7,500 inmates. Wexford grew rapidly after the Illinois contract, picking up contracts for 8 prisons and 13,000 inmates in Pennsylvania, and 17 prisons and 19,000 inmates in New York state. Wexford currently serves over 70,000 inmates in over 68 facilities in 11 different states; including a contract for about 500 inmates in the Martin County, Florida, jail since October 2000. Wexford’s current contract revenues projected forward for 12 months, are about $95 million, and Wexford expects to break the $100 million barrier soon. The "staffing up" process in the private correctional health care industry typically involves the vendor interviewing and often hiring the doctors, nurses, and other staff who are already in place at a particular prison providing the health care. This occurs regardless of whether the health care was being provided in-house by the prison system’s own employees, or under contract with a vendor. Wexford’s standard practice is to hire every single person already providing health care in a facility on a 90-day probationary period. Thus, the RFP’s requirement at Section 3.2.3.1, that the contractor interview the Department's existing employees, is consistent with Wexford’s standard practice. Wexford has not experienced problems in performing contracts where it had no presence prior to the contract award. The RFP requirement for interviewing current employees, as well as Wexford’s standard staffing practice and the staffing practice standard to the industry, demonstrate that Mr. Law’s statement concerning the "lack of presence in Florida" is not a significant basis for concern. Wexford anticipated "start-up costs" for the two clusters at between $3 million and $5 million. The single largest element of start-up costs is the employee salaries that Wexford will have to pay before it starts receiving payment from the Department. Wexford assumed 45 to 60 days of incurring salary costs before payments would be received from the Department. Under the terms of this RFP, vendors must submit an invoice for payment by no later than 15 days after the end of the month for which payment is sought. The invoice amount is calculated by multiplying the contract per diem rate by the ADP in the cluster prisons for that month. Obviously, it is in the contractor’s best interest to submit the invoice as soon after the end of a month as the ADP figure is available. It is the Department’s practice to pay invoices as quickly as it can. The other costs which a vendor will incur during both start-up and the entire period of the contract are primarily medical in nature. These include payment for inmate care at hospitals and doctor’s offices. Such services would not be paid for at the time of delivery, but would typically be paid 45 to 60 days after the contractor received an invoice. Thus, any such costs incurred by Wexford during the start-up period would not be paid by Wexford during the start-up period, but might be paid months later. As reflected in the notes to the audited financial statements contained in Wexford’s proposal, Wexford maintains a $10 million line of credit with a financial institution that it can expand if necessary. A line of credit is a borrowing line established with a financial institution on which a company can draw and repay as needed to finance its daily operations. As of the end of 1999, the amount drawn on this line of credit was $94,223, showing that it had been significantly paid down since the end of 1998. As noted by Wexford’s Chief Financial Officer at the time of final hearing, there were no funds drawn on the line of credit as of the week of final hearing. Wexford’s $10 million line of credit provides an ample resource for Wexford to financially perform this contract even during the start-up period before revenue begins to flow.
Recommendation On the basis of all of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a Final Order in this case awarding to Wexford contracts for both the West Cluster and the East Cluster, and denying all relief sought by all other proposers. DONE AND ENTERED this 4th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2001.
The Issue The issues in this case are whether Respondent committed sexual misconduct as charged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this case, Respondent was a licensed chiropractor in Florida, having been issued license number CH 9186 on June 1, 2006. At all material times, Respondent worked at and owned Florida Wellness and Rehabilitation Center (Florida Wellness), located at 101 North Franklin Street, Suite A, Tampa, Florida. He has been the sole or predominant owner of Florida Wellness since he started the business in 2006. Approximately ten years ago, Stephen Unger acquired a 13-percent ownership interest. Approximately eight years ago, Holly Ridge acquired an eight- percent ownership interest. Respondent retains a 79-percent ownership interest. Respondent’s business has expanded over the years. Florida Wellness now has five locations. In addition, over the last few years Respondent and his business partners established other health care businesses, including a pharmacy in 2017 and a surgical center in 2018. The ownership shares of these other businesses are the same as for Florida Wellness. Respondent now spends two days per week seeing patients at the Franklin Street location, and three days per week engaged in administrative matters to manage the businesses. Respondent’s license has not been the subject of prior discipline. In 2015, the Franklin Street location of Florida Wellness provided chiropractic care, acupuncture, family medicine by a family medicine physician, massage therapy by licensed massage therapists, and physical therapy ancillary to chiropractic care, provided by registered chiropractic assistants. Respondent described his practice as general chiropractic medicine, with an emphasis on treating automobile accident victims. At issue in the Amended Administrative Complaint is an incident involving Respondent and a patient, J.S., during a visit for chiropractic services on March 5, 2015. J.S. had been going to Florida Wellness for chiropractic treatment beginning November 10, 2014, following an automobile accident on or about November 1, 2014, that left him with neck, shoulder, and upper back pain. He and his then-partner, M.S., were in the accident together, and they were referred to Florida Wellness by Morgan & Morgan, the law firm representing them with regard to the automobile accident. J.S. had an appointment to see Dr. Leonard at 4:00 p.m. on March 5, 2015. His then-partner, M.S., drove him to Florida Wellness and went in with him to try to secure an impromptu adjustment. J.S. was met right away by Respondent, who took him back to a private treatment room. M.S., still waiting in the waiting area, saw Respondent escort J.S. back to a treatment room and close the door. M.S. said the door stayed closed; he did not see Respondent come back out. Shortly thereafter, M.S. was taken back for an adjustment by another chiropractor. Once inside the treatment room, J.S. fully disrobed in preparation for treatment, facing towards a dresser against a wall. Respondent stayed in the treatment room while J.S. disrobed.3/ As Respondent admits, it is inappropriate for a chiropractor to remain in the treatment room while a patient disrobes. J.S. testified that he had completely disrobed other times when treated by Respondent, based on Respondent’s advice, for ease of access to the targeted muscles. Respondent said that he had no recollection of what he said to J.S. on this subject, but, nonetheless, denied that he advised J.S. to disrobe. He testified that he has a “canned” speech that he gives to patients after he brings patients to a treatment room for manual therapy, telling them to undress to the extent they are comfortable doing so, and then to get on the treatment bed in between the bottom sheet and top sheet, covering themselves with the top sheet. Inconsistently, Respondent informed the Tampa police, in an interview shortly after the incident on March 5, 2015, that whether he has his patients completely disrobe depends on what treatment he is providing. Respondent explained that he had J.S. completely disrobe because J.S. needed treatment in his hip and groin area. J.S.’s clear memory of Respondent advising him to disrobe to assist in the treatment, consistent with Respondent’s explanation to the police an hour after the incident, is more credible than Respondent’s professed uncertain recall of what he told J.S. regarding disrobing. J.S.’s testimony is credited. Fully disrobed, in Respondent’s presence, J.S. turned away from the wall and got on the treatment bed, face down, for Respondent to begin treatment. J.S. was initially covered with a sheet, but Respondent pushed the sheet aside to begin manual therapy treatment to J.S.’s lower back, hips, buttocks, and the backs of his thighs (hamstrings). Manual therapy includes myofascial release, trigger point therapy, and passive stretching. J.S. described the manual therapy to his lower back, hips, buttocks, and thighs as “massage.” Respondent said that the manual therapy he provides is different from massage, which he described as for relaxation. Respondent also said that he does not think massage is a covered service, presumably referring to third-party payor coverage. J.S. testified that while he was going to Florida Wellness, he had not complained of pain in his lower region or hip area. His initial complaint was pain in the upper back, shoulder, and neck, and he did not subsequently report other areas of pain that developed. However, early on in his treatment, Respondent diagnosed him with hip rotation, which was explained to J.S. as one of his legs being shorter than the other. According to J.S., the manual therapy treatment to his lower back, hips, buttocks, and thighs was explained as necessary to loosen tight muscles to help with the hip rotation. J.S. understood that, despite the fact that he did not subjectively complain of pain, this diagnosis followed from the objective findings and assessment to identify problems in addition to the pain he reported. While J.S. was still face down on the treatment table, Respondent performed passive stretching to stretch the front of his thigh. This stretch entailed bringing the foot towards the buttocks while lifting the bent leg up by the knee. There is no legitimate reason for having a patient be fully disrobed to receive the manual therapy that Respondent administered to J.S., particularly not for this form of passive stretching. Instead, the leg being stretched would have to be uncovered, and even with careful draping and tucking (which did not occur in this instance), the sheet would necessarily be moved, with any tucking likely dislodged by the stretching movement. The risk would be high that the patient’s privacy-- particularly a patient with male genitalia--would be breached and the patient’s private parts unnecessarily exposed. In this instance, J.S. was fully and unnecessarily exposed, because Respondent had pushed the draping sheet off of J.S. Given this risk with no commensurate legitimate reason for having a patient completely disrobed (whether under a sheet or not), professionalism dictates that a chiropractor would instruct a patient receiving this form of passive stretching to remain clothed or wear underwear, or the chiropractor would supply the patient with a treatment gown or gym shorts to change into. As Petitioner’s expert reasonably opined, this should be the practice even if a patient would be comfortable disrobing. It is up to the chiropractic physician to set the professional parameters for the treatment being provided, for the protection of everyone involved, including the chiropractor. As Dr. Mathis put it: “[A] physician’s access to a patient’s body is a time- honored privilege and it’s very, it’s of the utmost importance that we maintain their modesty and respect their privacy. And also that demonstrates our professionalism and our respect for them as a patient.” (Tr. 74-75).4/ After the passive stretching while J.S. was face down, Respondent instructed J.S. to turn over. J.S. did so. He remained fully unclothed and uncovered by a draping sheet. Respondent performed more passive stretching and then proceeded to administer manual therapy/massage to J.S.’s left adductor muscles, which run along the inside of the thigh from the knee to the pubic bone. The daily medical encounter record for March 5, 2015, does not document the subjective complaint or objective findings prompting this deep tissue/muscle work. J.S. confirmed in his testimony that he did not complain of hip pain, thigh pain, or groin pain. His understanding from Respondent was that the adductor work was a continuation of the loosening of muscles to address his hip rotation.5/ Respondent worked on the inside of J.S.’s left thigh from knee to groin. As he approached J.S.’s groin, he grazed J.S.’s scrotum and penis with the back of his hand. Respondent did not say anything and J.S. did not say anything. J.S. testified that he thought it was incidental contact and did not think anything of it. Respondent continued working on the inside of J.S.’s thigh. While Respondent was massaging the inner thigh, the back of his hand brushed the side of J.S.’s genital region once or twice more. J.S. did not think anything of this contact either, assumed it was accidental, and nothing was said about it. As a result of the grazing, J.S.’s penis became partially erect. Respondent finished working on J.S.’s left thigh, and walked around to the right side of the table to work on the right thigh. Respondent then gripped J.S.’s penis with his full hand, palm and fingers wrapped around, and he began stroking J.S.’s penis. Respondent stroked J.S.’s penis several times. J.S. testified that he was frozen in shock and did not say or do anything. He believes the stroking continued for approximately one minute,6/ but admitted that his estimate of the duration may not have been an accurate perception under the circumstances. J.S.’s testimony describing Respondent having wrapped his fingers around J.S.’s penis and stroked it several times was clear, consistent, and credible, and is credited. After Respondent released J.S.’s penis, Respondent apologized, saying: “Sorry, you got the best of me.”7/ He then instructed J.S. to turn back over, face down again, and he proceeded to treat J.S.’s upper back, neck, and shoulder area, providing quick applications of pressure. J.S. described this treatment as adjustment-like, not exactly the popping and cracking of joints that one might associate with chiropractic adjustments, but quick pressure to help with alignment. The upper back-neck-shoulder treatment continued for a few minutes. When Respondent finished the adjustments, he touched J.S. on his shoulder and said, “Our secret?” J.S. responded, “Sure.” J.S. explained that he just wanted to keep a low profile and be compliant, so that he could get dressed and leave the room as quickly as he could without causing a stir (as might result if a naked young man ran out of a treatment room). J.S. got dressed and left the room to go to the open physical therapy (PT) area, where he was scheduled for weighted neck treatment. He did not interact with anyone. Instead, he went directly to the weighted neck treatment chair on the far side of the open PT room facing a wall and sat down. The back of J.S.’s chair and the back of his head faced the open PT area, so he was not positioned to see or make eye contact with anyone else in the room. J.S. was in the treatment chair and had already begun weighted neck therapy when M.S. finished with his adjustment and went to the PT area to find J.S.8/ When M.S. entered the room, he saw that Respondent was there, too, standing at a computer station, four or five feet behind the back of J.S.’s treatment chair. M.S. walked over to J.S.’s treatment chair, and he could see that J.S. was upset. J.S. reached for M.S.’s hand, which M.S. said that J.S. hardly ever did, as they tried not to engage in public displays of their affection. M.S. stood next to J.S. for a while and then went to sit on a therapy ball in the middle of the room to wait for J.S. to finish. Based on the substantially more credible evidence, J.S. was visibly upset and uncomfortable while in the open PT area. His demeanor upon completing the neck PT therapy was captured on an office surveillance video showing part of the open PT room, and it confirms M.S.’s description of J.S. as upset. The recording (video only) for March 5, 2015, has a time counter that begins at 4:31:53 p.m. and stops at 4:33:29 p.m. J.S. was initially blocked from view, but became visible when he rose from the weighted neck treatment chair, turned, and traversed the room. Respondent and J.S.’s partner, M.S., were also in view in the video. Respondent testified that J.S. did not appear to him to be upset or uncomfortable when he was in the open PT room, but the office surveillance video discredits his testimony. Indeed, the video shows that not only did J.S. appear upset and uncomfortable, but also, Respondent himself was noticeably uncomfortable. Respondent did not say how long he was in the open PT area while J.S. sat in the treatment chair with his back to the room, but Respondent did not contradict M.S.’s testimony that Respondent was standing at the computer station four feet behind the back of J.S.’s chair when M.S. entered the room. That is where Respondent was at the beginning of the video. Respondent had no view of J.S. from that position, except possibly the top and back of J.S.’s head and shoulders. Respondent had a brief opportunity to see J.S.’s expression and demeanor when J.S. rose after his treatment to cross the room to M.S. The video shows this: J.S.’s eyes were downcast. He was not smiling. He did not appear happy or relaxed. Instead, he appeared uncomfortable and upset. Before J.S. walked past Respondent, J.S. reached up to his chest at the V-neck of his shirt, and then started rubbing the side and back of his neck, either in pain following the neck therapy or in discomfort. J.S. did not raise his eyes to look over to Respondent as he walked past the far side of the standing desk where Respondent stood behind a computer monitor. Respondent appeared to say something as J.S. walked by, but J.S. did not look at Respondent even when he said something. J.S. testified that he believes Respondent told him what room to go to for electrical stimulation (e-stim) treatment, but that J.S. did not look at Respondent because of J.S.’s discomfort. J.S.’s eyes remained downcast and he kept rubbing his neck. When J.S. got to M.S.’s side, Respondent said something in their direction. He stepped out from behind the standing desk and took a few steps toward J.S. and M.S. J.S., still holding his neck, only looked at M.S., who gestured in a direction out of camera range. J.S. walked off in that direction, still holding his neck, and M.S. stood up and turned to follow J.S. As J.S. started to walk away in the direction that M.S. had gestured, Respondent stepped back, awkwardly touching his right hand near the front of his pants at the hip, then back toward the right buttock, and then he wiped his right hand on his right buttock in an awkward gesture of discomfort. (Jt. Ex. 2 at 4:33:22-4:33:24). Respondent then walked back behind the standing desk, reached both arms out over the computer keyboard as if he was going to type something, then immediately jerked his arms and hands back in another awkward display, as if he did not know what to do with his hands. (Jt. Ex. 2 at 4:33:26). He again stepped out from behind the standing desk, walked a few steps back towards M.S., and said something. As he did, Respondent began rubbing his left wrist and hand with his right hand, continuing the uncomfortable, awkward gestures. (Jt. Ex. 2 at 4:33:27- 4:33:28). The office surveillance video stopped the next second, at 4:33:29 p.m. J.S. and M.S. both testified that J.S. was scheduled to receive e-stim treatment after the neck therapy. J.S.’s care plan called for e-stim, and he said that it was part of the regular treatment he received, in addition to adjustments, massage (manual therapy), and weighted neck physical therapy. E-stim treatment is administered by one of the chiropractic assistants in one of the private treatment rooms. Rather than stay for e-stim treatment, J.S. left with M.S. after letting someone know that he did not want to stay for the additional treatment.9/ After walking out of the office, J.S. broke down crying. J.S. and M.S. went to their car in the parking garage, and J.S. told M.S. what happened. M.S. called the police, and two officers arrived 15 minutes later. Apparently Officer Graham, a white male, spoke with J.S. first, and then both Officer Graham and Corporal Penix, a dark-skinned female (see P. Ex. 6 at 1:54), interrogated J.S. while recording the encounter with an audio and video recorder. A DVD of the encounter is in evidence. The video shows that J.S. was treated with a degree of harshness, as if he was an accused rather than a complainant. For example, at the beginning of the recording, Corporal Penix stated that Officer Graham was going to “read you your . . . ,” and then corrected herself to say that Officer Graham was not going to read him his rights, but was going to swear in J.S., so that his interview was under oath. (P. Ex. 5 at 0:37-0:41). J.S. was questioned by the police while he sat in the passenger seat of the car in the parking garage. M.S. was waved away by Corporal Penix as the officers approached the car, so M.S. stood nearby, out of the way. The audio part of the interview was not very good, with a lot of background noise (from the parking garage, among other things), but J.S.’s statements were consistent with his subsequent written statement and his video deposition, in all material respects. J.S. appeared upset and uncomfortable in expression, demeanor, and body language. He rubbed at the side of his neck throughout much of the questioning. Officer Graham asked J.S. if he was hard when Respondent was stroking his penis, and J.S. said yes. Officer Graham then asked if J.S. ejaculated. J.S. said no. The two police officers then went to the Florida Wellness office. Corporal Penix operated the video recorder, and began recording (video only) as the officers approached the glass front office, before opening the glass door. Respondent was visible through the glass, as he was in the lobby before the police entered the office. When the officers entered the lobby, Respondent reached out to shake hands with each of them, and ushered them back to a private treatment room.10/ Once secured in the private treatment room, Corporal Penix added the audio portion to the recording, and the interview began. Respondent was not read his rights or sworn in. He was asked what happened with J.S. He stated that J.S. had issues in a sensitive area, and Respondent was treating that area. He then said that there was a graze of his hand on J.S.’s genitals, “which elicited a sexual response.” Making a face, Respondent added, “and it stayed that way.” (P. Ex. 6 at 1:16-1:17). Respondent then said that it got a little awkward, so he told J.S. that if he is uncomfortable, Respondent could stop treatment, but J.S. said no, everything is fine. So Respondent said he proceeded for another eight minutes or so. Respondent then said that because it was “really awkward” in that eight minutes, Respondent stopped and left the room. He said he immediately informed his colleague about what happened and documented it as “part of the medical encounter.” (P. Ex. 6 at around 1:35). Respondent initially took the officers to a treatment room that did not resemble the room described by J.S. in his testimony. This room had a segmented adjusting table, not covered by a sheet, along with two chairs, a desk with a computer station, shelves, and several pieces of equipment. After Respondent completed his description of what happened, Corporal Penix asked if they were in the room where J.S. was treated, and Respondent said no. He escorted them to a smaller, low-lit room that matched J.S.’s description. The room was dominated by a massage-type table/bed with a pillowed face rest, diagonally centered so that there would be space to walk around it. Other than the treatment bed, there was not much in the room: a small dresser against the wall to the right of the door, a shelf against the wall to the left of the door, a small hamper next to the shelf, and two small wastebaskets on either side of the bed. No chair, stool, or equipment was visible in the room. The interview continued in the room where it happened. Officer Graham asked whether, when Respondent said he was working on a sensitive area, he was talking about the penis. Respondent quickly said no, then with hands gesturing, said (or stuttered), “Hip. Hip-hip, hip-hip.” (P. Ex. 6 at 2:24-2:25). Corporal Penix asked Respondent whether J.S. had his clothing on, and Respondent said J.S. had taken his clothes off. Corporal Penix then asked whether J.S. kept his underwear on, and Respondent said no. When asked if he typically had his patients completely undress, Respondent said that it depends on what kind of treatment they need, and that for J.S., he was an ex-dancer, and “did a lot of splits and things in his groin area.” (P. Ex. 6 at 2:87). Officer Graham summarized what he had written down in his notes, including that Respondent said he grazed the genitals with his elbow or arm. Respondent corrected him, saying that he grazed the penis with his hand and forearm, pointing to the outside of his left hand, followed by a sweeping gesture up his forearm to just below the elbow. (P. Ex. 6 at 3:20-3:22). Officer Graham continued with his summary, stating that Respondent’s grazing action caused J.S.’s penis to be erect. Respondent appeared to hesitate before confirming that statement, so Officer Graham added, “Or was it already erect?” Respondent first said that it seemed a little, maybe, but then said that he was not really focusing on it. (P. Ex. 6 at 3:27-3:32). Corporal Penix then asked Respondent to show the positioning and movement: where J.S. was on the bed and how Respondent was moving with his arm to show how it grazed. (P. Ex. 6 at 3:50-3:59). Respondent said that J.S. lay on his back, with his head at the top of the bed (where the pillowed face rest is). Respondent then showed his positioning: he stood on the side of the bed where J.S.’s left side was, facing the top of the bed where J.S.’s face would have been. Respondent said he was working on J.S.’s adductors, gesturing to the imaginary thigh closest to where Respondent stood. Respondent demonstrated the movement of his left hand and forearm while working on J.S.’s adductors. From Respondent’s positioning, showing the pressure he was applying to an imaginary inside thigh on the half of the bed closest to where Respondent stood, Respondent demonstrated that he was working on J.S.’s left adductors. Respondent then made a sliding gesture forward (towards J.S.’s face) and across (from J.S.’s left inner thigh to J.S.’s left hip), demonstrating how Respondent’s left hand and forearm slid across J.S.’s groin area. (P. Ex. 6 at 4:00-4:11). At the hearing, Respondent testified to an entirely different scenario resulting in the grazing. Respondent did not say that he was standing next to J.S.’s left side, facing in the direction of J.S.’s face, with Respondent’s hand and arm movement going forward, sliding across J.S.’s genitalia. Instead, at the hearing Respondent said that he was sitting in a chair (also described as a stool) on the right side of the table, in line with J.S.’s knees, reaching across his right knee to work on the left adductors from knee to groin. Respondent said that J.S. was draped with a sheet across his genitals, and that as Respondent approached the groin area, Respondent made contact with something, looked up, and saw that what he made contact with was J.S.’s penis, which was fully exposed. Respondent said that he did not notice that J.S.’s penis had become uncovered by the sheet, because Respondent was looking at J.S.’s left knee. He said that he made contact with the medial aspect of his left hand and his wrist, though he said it was more wrist than hand. Several weeks earlier in deposition, Respondent testified that he could not remember which side of the treatment bed he was on or which leg he was working on when the grazing occurred. He also said that he grazed J.S.’s genitals with the medial aspect of his hand and “potentially the wrist.” (P. Ex. 13 at 65). Respondent admitted that when his hand/wrist touched Respondent’s penis, it was skin-on-skin contact. But Respondent claimed that J.S. was draped with a sheet the entire time, except for when J.S.’s penis became exposed. Respondent said that his position, sitting on J.S.’s right side at knee level, with his focus towards J.S.’s left knee, kept him from noticing the sheet had slipped, exposing J.S.’s penis, until contact was made. It is, perhaps, conceivable that someone seated in a chair or stool on the right side of a massage table, staring only at the left knee of a person laying face up on the table, might not be able to see an exposed penis, if the person on the table were to suddenly be exposed. However, it is not conceivable that Respondent, from that position, could reach up and over the right leg of his patient to apply compression pressure effectively with the hard part of the palm to the inner thigh of the patient’s left leg. It is even more inconceivable that Respondent would remain focused on the patient’s left knee while Respondent applied that compression pressure all the way down the inner thigh from the knee to the groin. That is a contortion that defies logic. Respondent’s testimony at hearing was not as credible as his demonstration to the police an hour or so after the incident. The changes in the description appear calculated to support his claims that J.S. had been draped with a sheet until it somehow moved, and that Respondent would not have noticed J.S.’s exposed penis until after he touched it. Respondent’s demonstration of his own positioning and movements shortly after the incident leaves no doubt that, had J.S. been draped and had the drape accidentally slipped before contact, Respondent surely would have seen it and professionally would have been obliged to correct the draping. The police officers asked Respondent if they could speak with the colleague to whom he reported the incident, and he agreed to let them talk to Holly Ridge, D.C. Dr. Ridge reported that Respondent took her into the treatment room where the incident happened, immediately after it happened. She said that Respondent told her that during an acupuncture session with J.S., while working on J.S.’s adductors near his groin, there was an accidental grazing of Respondent’s hand on J.S.’s penis, which resulted in sexual arousal--an erection. Respondent told her that he asked J.S. if he was uncomfortable, and that he could stop treatment, but J.S. said he was fine. Dr. Ridge added that she and Respondent discussed documenting the incident, and Respondent wanted her opinion about where to record it. They agreed it should go in the “patient notes” section of the patient chart, and Respondent did that. In the Florida Wellness EMR system, the “patient notes” section is not part of the patient’s medical records. It was described as for internal communications, such as whether a patient prefers to go by her middle name instead of first name. It was Respondent’s intention to create the note as “evidence,” but to exclude it from the daily medical encounter report. Therefore, Respondent’s note of the incident is not found in J.S.’s daily medical encounter record for March 5, 2015. In fact, the “note” is not in evidence, because Respondent only offered a screenshot of a computer image as opposed to an actual printout, and the screenshot provided at hearing was not legible. Nonetheless, Dr. Ridge was permitted to testify to the note’s contents, and Respondent was permitted to testify that the time stamp on the screenshot was 4:48 p.m., on March 5, 2015. Respondent said that he did not want to include his note regarding the incident in the actual medical encounter record, out of fear that it would create problems for J.S.’s lawsuit regarding the automobile accident, an explanation that makes no sense. Respondent told the police that he documented the incident as part of the medical encounter, earning him a comment from Corporal Penix that Respondent did the right thing. Respondent and Dr. Ridge both told the police that Respondent reported the incident to Dr. Ridge immediately after it occurred. Respondent testified in his deposition that he reported the incident to Dr. Ridge immediately or within a few minutes afterward; his memory was that it was the first thing he did after finishing J.S.’s treatment. But that is not what happened. Once again, there is a timeline problem. After the incident, and after J.S. got dressed and went to the PT area for his weighted neck therapy, Respondent also went to the PT area. It was not until after Respondent saw that J.S. was upset when J.S. finished his neck treatment--and Respondent showed some discomfort himself--that Respondent sought out Dr. Ridge and the internal note was created, approximately 15 minutes after the end of the office surveillance video. Respondent apparently realized the timeline problem before the hearing, because his testimony was revised to say that he talked to Dr. Ridge after he was in the PT area (without offering an explanation for the inconsistencies). The record is replete with other inconsistencies, large and small, in Respondent’s explanation of the incident itself.11/ Touching on just a few, Respondent testified in deposition and at hearing that the incident was not awkward, nor was the completion of treatment to J.S. after the incident. In contrast, Respondent told the police that the incident was awkward, and that it got “really awkward” in the eight minutes during which Respondent said he continued treatment. Respondent testified that he did not notice J.S.’s penis before contact was made, and after contact he immediately covered J.S.’s genitalia and did not notice the condition of J.S.’s penis thereafter. But Respondent told the police that J.S.’s penis “seemed a little, maybe” erect before the grazing, that the grazing elicited a sexual response, and (making a face) that it stayed that way. Respondent’s final step, taken the following morning, was to speak with J.S.’s attorney at Morgan & Morgan, and accede to the attorney’s request for Respondent to determine that J.S. had achieved maximum medical improvement, a legal term of relevance to the attorney in the lawsuit against the person who hit M.S. and J.S.’s automobile. From November 10, 2014, through March 5, 2015, each of J.S.’s daily medical encounter records had the same care plan: Based on the patients [sic] presentation, and current prognosis, it is my opinion the patient should be treated with manipulative and physiological therapeutics three times a week for four to six weeks. These therapies will consist of therapeutic exercises, stretching, mobilization/manipulation of involved joints, trigger point treatment and electric muscle stimulation. (Jt. Ex. 1 at Bates 9). The plan changed overnight, without any re-evaluation of J.S. At 9:55 a.m. on March 6, 2015, Respondent electronically signed, after reviewing and revising, an “update” to J.S.’s care plan. In the update, Respondent concluded as follows: “I believe that [J.S.] has reached a point of Maximum Medical Improvement from our conservative care. He is released from my care and should return to a different chiropractic physician if [needed in the future].” (Jt. Ex. 1, Bates p. 74). Although Respondent opined in the medical record (at the attorney’s request) that J.S. “has” reached maximum medical improvement, Respondent testified in deposition and at hearing that it was only a “possibility” that J.S. had “potentially” reached maximum medical improvement. (P. Ex. 13 at 118; Tr. 303). Respondent admitted he discharged J.S. as a patient because J.S. complained to the police about the incident. Respondent said he regrets not documenting in the medical record the real reason he discharged J.S. (but that would have undercut his opinion that J.S. had reached maximum medical improvement). After March 5, 2015, J.S. did not attempt to return for more treatment by Respondent or anyone else at Florida Wellness. J.S. enlisted in the United States Navy. He testified in April 2019 by video deposition in lieu of hearing testimony while on his last vacation before going to Mississippi for four months of training, followed by deployment to Guam. After March 5, 2015, M.S. stopped going to the Franklin Street location of Florida Wellness, which is the only location where Respondent sees patients. M.S. still goes to Florida Wellness, but at a different location with different physicians. J.S. and M.S. are no longer in a relationship. They split up in 2017. No lawsuit was brought against Respondent by J.S. and/or M.S. on account of the incident. Summary with Ultimate Findings of Fact There has never been a dispute that Respondent came into skin-on-skin contact with J.S.’s genitalia. The issue is whether, as J.S. asserted, there was intentional contact. Respondent denied that he grabbed J.S.’s penis and stroked it, but Respondent never landed on a credible explanation of the skin-on-skin contact that he admits did occur. His ever-shifting descriptions of the incident, including where he was (left or right side, sitting or standing), how contact was made with what part of Respondent’s hand and/or wrist and/or forearm, how J.S.’s penis came to be exposed, and how Respondent could not have noticed an exposed partially erect penis before coming into contact with it, undermine the credibility of Respondent’s claim that the contact was accidental. In addition, Respondent admitted, initially, that he remained in the treatment room while J.S. fully disrobed. Respondent’s attempt to later deny that he had done so and offer an incongruous explanation for his prior admission substantially undermined Respondent’s credibility. What is left is the impression that the truth was retracted upon reflection that admitting to inappropriate conduct to start the treatment session casts doubt on Respondent’s explanation of what happened thereafter. The credible, clear, and convincing evidence establishes that Respondent intentionally touched J.S.’s penis, grasping and stroking it, on March 5, 2015. Respondent had no medical reason to touch J.S.’s penis, as the parties stipulated. The parties also stipulated that a chiropractor who has purposely made intentional physical contact to a patient’s penis for non-diagnostic or non-therapeutic purposes has committed sexual misconduct. Having purposely made intentional physical contact to J.S.’s penis for non-diagnostic and non-therapeutic purposes on March 5, 2015, Respondent committed sexual misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding Respondent guilty of violating section 460.413(1)(ff), Florida Statutes (2014), through a violation of section 460.412, Florida Statutes (2014), and rule 64B2-17.0021, as charged in the Amended Administrative Complaint; revoking Respondent’s license to practice chiropractic medicine; and imposing costs of the investigation and prosecution of this case. DONE AND ENTERED this 13th day of September, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2019.
The Issue The ultimate issue is whether the State's insurance program should pay for physical therapy provided to its insured, the Petitioner; however, this is dependent only upon a determination of what is medically necessary.
Findings Of Fact At all times pertinent to the issues contained herein, Petitioner was an eligible dependent of E. P. J. Gibbs, #F266-87-2492, an insured employee under the State of Florida Employees' Group Health Self Insurance Plan, provided for in Section 110.123, Florida Statutes. Eligible dependents are entitled to participate and obtain the identical level of benefits as are available to insured employees. Petitioner first injured her right knee while jogging in September or October 1983. (Petitioner Exhibit 1 - letter of Dr. Peter Indelicato.) Petitioner was first examined by Dr. Peter A. Indelicato, an Orthopedic Physician specializing in sports medicine, on October 10, 1983, for evaluation and treatment of pain in her right knee. Dr. Indelicato diagnosed Petitioner's condition as patellofemoral pain syndrome (PPS). PPS is a condition which causes pain in the area surrounding the patella (knee cap) and the femur (bone of the thigh). This condition may be treated surgically or non-surgically (conservatively) by strengthening the leg and knee through physical therapy. Dr. Indelicato treated Petitioner's condition conservatively, referring Petitioner to the Physical Therapy and Rehabilitation Center (PTRC) on October 11, 1983, for evaluation and treatment in the quadricep strengthening program in accordance with Anterior Cruciate Ligament Protocol (ACL Program). See Page 22 of Hearing Officer Exhibit 1. This protocol started at the same point as the post operative protocol in the 7-8 weeks after surgery and ran until the 16-18 weeks after surgery. See Page 20 of Hearing Officer Exhibit 12 On her referral to the PTRC, the Petitioner was observed by staff members. The Petitioner was unable to ambulate without difficulty; did not have full range of movement in her leg; the pain in Petitioner's knee made pedaling the stationary bicycle uncomfortable; and work out with the Cybex, another exercise machine, was totally precluded because of pain. Following Petitioner's admission to the program, Petitioner's condition improved. Within one week of her admission into the program, Petitioner lost the "catch" in her patella. By October 28, 1983, Petitioner was able to tolerate the stationary bicycle. By November 9, 1983, Petitioner was able to exercise using the Cybex. On November 18, 1983, the charting for the Petitioner by the physical therapist reflected that she continued to do well and concluded: "She is scheduled to return to see Dr. Indelicato next week and I think we can discharge her on a home program at that time." See Hearing Officer's Exhibit 1 Page 25. Dr. Indelicato examined the Petitioner on November 21, 1983. The doctor found visible atrophy or wasting away of the quadricep and that the strength of Petitioner's quadricep muscle could not be tested because of pain. Based upon these findings, Dr. Indelicato referred Petitioner back to therapy at the PTRC for an additional 4-6 weeks. See Gibbs Exhibit 1. The charting for the physical therapist for November 27, 1983 stated: "Pt. returned to see Dr. Indelicato this week and in light of her diminished Cybex results it was decided to continue her on a further quadricep strengthening program. She is working terminal extension on the Cybex, stationary cycling and SLR (Straight Leg Raise) and not having any difficulty." See Hearing Officer Exhibit 1, page 26. Dr. Indelicato's order for continued therapy was consistent with the ACL Protocol which calls for 9-10 weeks of therapy. See Hearing Officer's Exhibit 1, page 20. Petitioner continued to receive physical therapy treatments until January 13, 1984. All total, Petitioner received 39 days of treatment from October 11, 1983 to January 13, 1984, or approximately eight weeks of therapy. The following is a list of treatments by date with costs. DATE AMOUNT 1. October 11, 1983 $30.00 2. October 12, 1983 30.00 3. October 14, 1983 30.00 4. October 17, 1983 30.00 5. October 19, 1983 30.00 6. October 21, 1983 30.00 7. October 24, 1983 30.00 8. October 26, 1983 30.00 9. October 28, 1983 30.00 10. October 31, 1983 30.00 11. November 2, 1983 35.00 12. November 4, 1983 32.50 13. November 7, 1983 32.50 14. November 9, 1983 32.50 15. November 11, 1983 32.50 16. November 14, 1983 32.50 17. November 16, 1983 32.50 18. November 18, 1983 45.00 19. November 21, 1983 35.00 20. November 23, 1983 35.00 21. November 28, 1983 35.00 22. November 30, 1983 35.00 23. December 2, 1983 35.00 24. December 5, 1983 35.00 25. December 7, 1983 35.00 26. December 9, 1983 32.50 27. December 16, 1983 27.50 28. December 19, 1983 35.00 29. December 22, 1983 32.50 30. December 23, 1983 40.00 31. December 27, 1983 35.00 32. December 28, 1983 35.00 33. December 30, 1983 35.00 34. January 3, 1984 35.00 35. January 5, 1984 35.00 36. January 6, 1984 35.00 37. January 9, 1984 35.00 38. January 11, 1984 35.00 39. January 13, 1984 35.00 TOTAL NOT PAID $622.50 The Department of Administration contracts with Blue Cross Blue Shield of Florida, Inc. (BCBS) to be its Administrative Services Only Agent pursuant to Section 110.123(5), Florida Statutes. Dr. Richard C. Dever, Medical Director at BCBS, testified BCBS uses certain screens which allow a certain number of medical services to be paid simply on the basis of the submitted claim. The number of physical therapy sessions which triggers screening is 21 within a six month period. On November 30, 1983, the Petitioner's total visits to the therapist exceeded 21 visits within 6 months of October 11, 1983. (Deposition testimony of Dr. Richard Dever, page 6.) When the Petitioner's treatment exceed 21 visits, documentation was requested by letter dated March 29, 1984. See Hearing Officer Exhibit 1, page 18. This data was provided the first time by the physical therapist shortly after it was requested. The record of the reviews, page 29 of Hearing Officer Exhibit 1, reflects a request for review by "RBB" on March 6, 1984. On April 12, 1984, M. Kunie, R.N., determined that maximum benefits had been paid and no additional payment should be made. No basis for this determination is stated in the BCBS records except that the number of visits exceeded the set number, 21. On March 16, 1984, according to Composite Exhibit 1, page 2, Rhonda Brannon of BCBS advised the PTRC by letter as follows: The above claim, along with all supporting documents, was forwarded to our Medical Review Department. They have advised us that this claim was paid correctly, under the terms of this contract, and no further payment is due. Brannon's letter gave no basis for denying the claim, was not addressed to Petitioner, and did not mention the Petitioner's right to an administrative hearing to controvert this administrative determination of her rights. On May 22, 1984 Petitioner wrote to Nevin Smith, Secretary of the Department of Administration, requesting a formal administrative hearing on the denial of her claim pursuant to Chapter 120, Florida Statutes. See Composite Exhibit 1, Page 1. On May 30, 1984, Daniel C. Brown, General Counsel for the Department of Administration, replied to Petitioner in care of the PTRC. In summary, Mr. Brown advised Petitioner that her request for a hearing was rejected because her letter was insufficient to permit the Department to determine whether a formal hearing is appropriate or whether the controversy may be resolved without a formal hearing. Mr. Brown's letter also stated that if Petitioner would provide a statement stating the nature of treatment rendered by the rehabilitation center, the date of service, the amount of payment that was made by BCBS for such service, and the reasons given Petitioner by BCBS for no further payment the Department would institute administrative proceedings. See Composite Exhibit 1, Page 4. On June 8, 1984, Susan Gardner, Office Manager of PTRC, replied to Mr. Brown advising him that Petitioner was in Europe for six weeks, and forwarded to him the information which he requested. See Composite Exhibit 1, Page 5. On June 14, 1984, Mr. Brown replied to Ms. Gardner advising her that Ms. Gibbs would have to submit a petition containing the information which he had earlier outlined in his May 30, 1984 letter. See Composite Exhibit 1, Page 6. On June 25, 1984, the professional therapists at PTRC wrote Governor Bob Graham regarding the pending claims of the Petitioner and others outlining their difficulties in obtaining relief or a hearing. See Composite Exhibit 1, Page 7. The next correspondence was from Petitioner on March 13, 1985, when she again wrote Nevin Smith, Secretary of the Department of Administration. Her letter references a telephone conversation with Mr. Smith in which he had represented that Petitioner's claim would be reviewed by a qualified person. See Composite Exhibit 1, Page 10. Gilda Lambert, the new Secretary of Administration, replied to Petitioner on March 27, 1985. Lambert's letter reflects that BCBS had purged the file and that Petitioner's records were no longer on file. Ms. Lambert advised Petitioner to send copies of her file to Customer Service, Bureau of Insurance, Department of Administration to enable the Department to request BCBS to review Petitioner's claim to determine if the service was medically necessary. See Composite Exhibit 1, Page 11. On April 12, 1985, Susan Gardner of PTRC wrote Ms. Lambert forwarding to her the records of Petitioner and all their patients with similar problems. See Composite Exhibit 1, Page 12. On June 24, 1985, Dennis E. Nye, Chief of the Bureau of Insurance, wrote Petitioner advising her that guidelines limited treatment to four treatments per day for 21 days unless documentation is provided showing additional days of treatment are medically necessary. This was the first time the term "medically necessary" was used in explaining the agency's action. On February 17, 1984, PTRC had provided documentation for the treatment, which in the opinion of the Medical Review department did not support more than 21 days of treatment. Mr. Nye's letter did advise Petitioner of her right to a hearing within 21 days pursuant to Chapter 120, Florida Statutes. Dr. Richard C. Dever, M.D., an employee of BCBS gave a deposition clarifying the review procedures of BCBS of Petitioner's file. Petitioner's file was subjected to Level II review of the documentation. Level II review is by nurses in the medical review area. According to their assessment, there was no further medical improvement after 21 treatments. According to Dr. Dever, if a patient does not show any improvement, their treatment is considered "maintenance therapy," is not considered medically necessary, and is not covered. See Dever Deposition, Page 7, Line 24 to Page 8, Line 5. There is no evidence introduced that Petitioner's file was reviewed by a physician, much less one specializing in orthopedics. On July 23, 1985, Ms. Gibbs requested a hearing asserting that the treatment she received was medically necessary. According to the Department, the contract for coverage provides as follows regarding medical-surgical expenses: III. COVERED MEDICAL-SURGICAL EXPENSES A. 100 percent of the actual charge for medically necessary inpatient/outpatient physician or physical therapist expenses shall be paid when ordered by a physician for the treatment of an insured as a result of a covered accident or illness subject to the one hundred dollar ($100.00) deductible per insured; however, such payment shall not exceed the maximum amount permitted under the AFS (approved fee schedule).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Administration pay the Petitioner's claim and carefully assess the existing program to prevent a reoccurrence of the many problems revealed in this case. DONE and ORDERED this 3rd day of December, 1986, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986.
The Issue Whether the Petitioner's application to offer a health flex plan pursuant to Section 408.909, Florida Statutes, should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The OIR and the Agency for Health Care Administration each must "approve or disapprove health flex plans that provide health care coverage for eligible participants." § 408.909(3), Fla. Stat. The purpose of health flex plans is to provide basic and preventive health care services "to low-income uninsured state residents." § 408.909(1), Fla. Stat.7 On November 12, 2004, Comprehensive Medical Access submitted an application to the OIR for approval to participate in the health flex plan pilot program created by the Legislature in Section 408.909, Florida Statutes. Comprehensive Medical Access was formed in 2003 for the purpose of applying for approval to offer a health flex plan. Jack J. Michel, M.D., wholly owns Comprehensive Medical Access, and is its president and chief executive officer. Dr. Michel specializes in the practice of internal medicine, and has been licensed to practice medicine in Florida since 1993. Dr. Michel owns ten healthcare-related companies. In 1998, Dr. Michel purchased Larkin Community Hospital, which is located in South Miami, Florida, and he is the chief executive officer of the hospital in charge of running the hospital. Larkin Community Hospital is a general acute-care hospital that provides surgery facilities and an emergency room. The hospital specializes in providing care to elderly patients, and has an annual operating budget of $30 to $40 million a year, with a monthly payroll of $1.4 million. Larkin is currently approved as a Medicare and Medicaid provider, and it also provides services under contract for federal and state prisoners. In addition, Larkin Hospital and Dr. Michel have been licensed by Florida and the federal government to provide home health services under Medicaid and Medicare. Comprehensive Medical Access, under the management of Dr. Michel, also operates several clinics to serve low-income, elderly, and indigent patients.8 These clinics are designated by the Agency for Health Care Administration as "area of critical need" facilities. This designation allows Comprehensive Medical Access to employ physicians licensed to practice medicine in states other than Florida, including Puerto Rico, who have been issued limited licenses by the Florida Board of Medicine. Comprehensive Medical Access pays these physicians less than it pays those licensed to practice medicine in Florida, and it can, therefore, serve more low-income, elderly, and indigent patients. Currently, Comprehensive Medical Access clinics serve more than 50,000 low-income, elderly, and indigent patients. Many of these patients would be eligible to participate in Comprehensive Medical Access's health flex plan, were its application to be approved. Under Comprehensive Medical Access's business plan for operation as an entity offering a health flex plan, the various clinics it currently operates would provide general health care services for those enrolled in Comprehensive Medical Access's health flex plan, and Larkin Community Hospital would provide hospital services. Under the plan, these services would be provided to individuals participating in the health flex plan, who would pay a monthly fee to Comprehensive Medical Access and co-payments for some services when the services are provided. In its application for approval to offer a health flex plan, Comprehensive Medical Access disclosed that Dr. Michel and his brother, George J. Michel, M.D., who is Comprehensive Medical Access's vice-president and medical director, had been named as defendants in a civil lawsuit filed by the United States of America in the United States District Court for the Southern District of Florida. Numerous defendants were named in the lawsuit, including Larkin Community Hospital and other entities in which Dr. Michel had ownership interests. The 58-page complaint filed in the federal government's civil lawsuit included eight counts relating to two alleged schemes: The first scheme allegedly occurred in 1997 and allegedly involved kickbacks paid by Larkin Community Hospital and related corporations to Dr. Michel, Dr. Michel's practice group, and Dr. George Michel in return for admitting patients to that hospital; many of the patients were allegedly covered by Medicare and many of the admissions were allegedly medically unnecessary. The second scheme allegedly occurred in 1998-1999, after Dr. Michel purchased Larkin Community Hospital, and allegedly involved the fraudulent increase of Medicaid and Medicare revenues by "churning" patients into that hospital from skilled nursing and assisted living facilities, some of which were owned by Dr. Michel, among others; many of the patients allegedly received medically unnecessary treatments while in Larkin Community Hospital. Four counts of the civil complaint charged Dr. Michel and others with violations of the federal False Claims Act, Title 31, Section 3729(1)(1), United States Code, with respect to both the alleged 1997 scheme and the alleged 1998-1999 scheme; one count charged Dr. Michel and others with common law fraud with respect to both alleged schemes; one count charged entities owned by Dr. Michel and others with payment by mistake; one count charged Dr. Michel and others with unjust enrichment; and one count claimed that the government was entitled to "disgorgement of illegally earned monies." The Florida Board of Medicine initiated disciplinary proceedings against Dr. Michel on the basis of the allegations in the civil complaint but dismissed the proceeding before hearing. After the civil complaint was filed, the Agency for Health Care Administration ("AHCA") notified Larkin Hospital that it was suspending Medicaid payments as a result of the allegations in the civil complaint. Comprehensive Medical Access filed a lawsuit in circuit court seeking to enjoin AHCA from suspending Medicaid payments, and a temporary injunction was granted. Dr. Michel testified during the evidentiary hearing conducted by the OIR on June 9, 20059: The allegations in the federal civil complaint arose from testimony given by an associate of the doctor from whom Dr. Michel purchased Larkin Hospital who had been convicted of participation in a kickback scheme in Illinois and who had received a sentence reduction for his testimony regarding Larkin Hospital; The allegations regarding kickbacks were based on misunderstandings about the actual expenses incurred by his practice group relating to the provision of emergency room services at Larkin Hospital under a contract that was never executed, about the reasons for the large number of patient referrals to Larkin Hospital by Dr. Michel and members of his practice group, and about the expenses incurred under the contract between Larkin Hospital and Dr. Michel's practice group for the provision of radiology services to the hospital; The allegations in the civil complaint that Dr. Michel and entities he owned, operated, or controlled billed Medicaid and Medicare for services that were not medically unnecessary were based on audits that disallowed payment for excessive days of hospitalization, but, as a result of appeals, the total number of days disallowed was substantially decreased; and Dr. Michel also testified in June 2005, that the parties in the civil lawsuit had reached a settlement in principal that he expected to be finalized within 60 days, with Larkin Hospital paying $10 million of the total proposed $15 million settlement amount. Dr. Michel categorized the decision to settle the case as a business decision on the part of all parties because it would be difficult to prove or disprove the allegations in the complaint. A settlement had not, however, been finalized at the time of the final administrative hearing in this case. Ultimate finding of fact The filing and pendency in federal court of the civil complaint containing allegations of wrongdoing, including payment of kickbacks and fraud, on the part of Dr. Michel and healthcare-related entities he owned or operated or with which he was associated, are sufficient to raise the issue of Dr. Michel's fitness and trustworthiness as the owner and chief executive officer of Comprehensive Medical Access to operate Comprehensive Medical Access as an entity offering a health flex plan. Dr. Michel did not present any evidence during the hearing relating to the substance of the allegations contained in the civil complaint, but he did establish by credible and persuasive evidence that he is competent to own and operate an entity providing a health flex plan due to his experience in managing entities providing healthcare services, including clinics which primarily service low-income, elderly, and destitute patients; his knowledge about the healthcare services needed by these groups of individuals; and his familiarity with the health flex plan program enacted by the legislature in Section 408.909, Florida Statutes, and how such a plan could be put into operation. In addition, Dr. Michel appears to have in place the facilities and personnel to provide healthcare services under a health flex plan. Nonetheless, the evidence presented by Dr. Michel is not sufficient to overcome the serious concerns regarding Dr. Michel's trustworthiness and fitness to own and operate Comprehensive Medical Access as an entity offering a health flex plan arising as a result of the pendency of the civil complaint filed by the federal government. The explanations provided by Dr. Michel during the investigatory hearing before the OIR are insufficiently persuasive to overcome these reasonable concerns, as is the fact that the settlement pending in June 2005 has yet to be finalized. Comprehensive Medical Access has, therefore, failed to establish with the requisite degree of certainty that Dr. Michel is trustworthy and has not engaged in business operations in bad faith.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Insurance Regulation enter a final order denying the application of Comprehensive Medical Access, Inc., to offer a health flex plan. DONE AND ENTERED this 1st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2006.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration, which finds and concludes as follows: 1. The Agency issued the Petitioner the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review. (Ex. 1). The parties have entered into the attached Settlement Agreement (Ex. 2). The Settlement Agreement is approved and adopted as part of this Final Order. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. ORDERED at Tallahassce, Florida, on this Z| day of Maven , 2014. Pap GQ Elizab sri Con Agency for Health Care Administration
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to scek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. Filed March 25, 2014 3:55 PM Division of Administrative Hearings CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this 7/ Saay of Aece4 , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Medicaid Accounts Receivable Facilities Intake Unit Mail Stop #14 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Warren J. Bird Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Thomas Scott 0/b/o St. Andrews Bay Skilled Nursing and Rehabilitation Center 5420 West Plano Parkway Plano, Texas 75093 (U.S. Mail) Thomas W. Caufman, Esquire 4905 West Laurel Street, Suite #200 Tampa, Florida 33607 Counsel to St. Andrews Bay Skilled Nursing and Rehabilitation Center (U.S. Mail) LON LABEL . Certified Article Number 7156 5008 9413 1372 4356 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION: RICK SCOTT ELIZABETH DUDEK GOVERNOR SECRETARY October 17, 2013 CERTIFIED MAIL STEPHANIE PENA, ADMINISTRATOR RECEIVED LICENSE NUMBER: 1366095 ST ANDREWS BAY SKILLED NURSINGANDITY INTAKE UNICASE #: 2013010982 REHABILITATION CENTER 2100 JENKS AVE OCT 91 2013 PANAMA CITY, FL 32405 A Bcacy for Health Care Admini. i NOTICE OF INTENT TO DEEM APPLICATION INCOMPBE AND WITHDRAWN FROM FURTHER eee EE AE ante LIURNINCOMELETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that “Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited.” You were notified by correspondence dated September 11, 2013 to provide further information addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency’s correspondence. Our records indicate you received this correspondence by certified mail on September 14, 2013. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: © Pursuant to 408.831, there is an outstanding fine in the amount of $500.00 for case #200901 1135, Additionally Pursuant to section 408.831, Florida Statutes (F.S.), requires any outstanding fines, liens, or overpayments assessed by Final Order of AHCA or the Centers for Medicare and Medicaid Services by the licensee or a common controlling interest to be paid prior to license/registration issuance. In addition, failure to comply with any repayment plan may result in the denial, suspension or revocation of a license, registration or certificate. Mr. Thomas Scott is a common controlling interest for Lighthouse Community Services. A Payment Plan Agreement (Case #07-5531-000) was signed effective August 27, 2007. The provider defaulted on the payment plan. As of date, provider owes $174,857.05. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), E.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ail D EXPLANATION OF RIGHTS FORMS. Berdard E. Huson, Manager Long Term Care Unit cc: Legal Intake Unit, Mail Stop 3 Visit AHCA ontine at ahca,myflorida.com 2727 Mahan Drive,MS#33 Tallahassee, Florida 32308 , EXHIBIT 1 STATE OF FLORIDA i DIVISION OF ADMINISTRATIVE HEARINGS ST. ANDREWS BAY SKILLED NURSING AND REHABILITATION CENTER, Petitioner, DOAHNo. — 13-004337 vs. AHCA No. 2013010982 AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Respondent, State of Florida, Agency for Health Care Administration (hereinafter “Agency”), through its undersigned representatives; and Petitioner, St. Andrews Bay Skilled Nursing And Rehabilitation Center, LLC, (hereinafter “Petitioner” or “St. Andrews”), through their undersigned representatives; pursuant to Section 120.57(4), Florida Statutes (2011), each individually a “party”, collectively as “parties”, hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Petitioner is presently licensed as, or is an applicant for licensure as a skilled nursing facility pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes; and Chapter 59A-4 and 59A-35, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner; and WHEREAS, the Agency served the Petitioner on October 17, 2013, with a Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (NOD), notifying Petitioner of the Agency’s intent to withdraw Petitioner’s application for renewal of licensure based on the several factors cited therein, including the allegations that Thomas Scott, who is a EXHIBIT 2 controlling interest of Petitioner, was also a controlling interest of another licensee, Lighthouse Community Services, LLC. (Lighthouse), which had defaulted on a Repayment Plan (hereafter, Lighthouse Repayment Plan), executed by Thomas Scott on August 27, 2007, to repay Medicaid funds in the amount of $218,548.47 (Case number 07-5531-000). The default left a balance as of the date of issue of the NOI, of $174,857.05. The NOI is attached hereto and incorporated herein as Exhibit A, and the Lighthouse Repayment Plan is attached hereto and incorporated herein as Exhibit B. The NOI further advised Petitioner that, pursuant to Section 408.831(1), Florida Statutes, Petitioner’s license renewal application would be withdrawn from further consideration by the Agency as the result of the default on the outstanding debt owed by Lighthouse; and WHEREAS, the Petitioner requested a formal administrative hearing by timely filing election of rights form and petition for formal administrative proceedings with the Agency; and which case was forwarded to the Division of Administrative Hearings; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the matters further; and WHEREAS, the parties stipulate to the adequacy of consideration exchanged; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of these proceedings; NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound hereby, agree as follows: 1. All recitals are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all further proceedings and appeals to which it may be entitled relating to the above-referenced NOI, including, but not limited to, informal proceedings under Subsection 120.57(2), formal proceedings under Subsection 120.57(1), and appeals under Section 120.68, Florida Statutes; declaratory, and all writs or other forms of relief in any court or quasi-court (DOAH) of competent jurisdiction; and further agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided however, that no agreement herein shall be deemed a waiver by any party of its right to judicial enforcement of this Agreement. 4. Contemporaneously with execution of this Agreement by Petitioner, Lighthouse Community Services, LLC shall pay to the Agency in certified funds, an initial payment, in lump sum, on February 1, 2014 of eighty-seven thousand five hundred dollars ($87,500.00) of which five thousand five hundred fifty-seven and 10/100s dollars ($5,557.10) will be applied to interest. This payment, and all payments made hereunder are intended by the parties to be applied to the Lighthouse Amended Repayment Plan (Provider Number 6767249-96/MPI Case No. 07-5531- 000). This initial payment shall be deducted from the amount of $174,857.05 owed as of October 17, 2013, on the Lighthouse Repayment Plan executed by Thomas Scott on behalf of Lighthouse, referenced herein above, plus interest accrued thereafter at the rate of ten per cent (10%) per annum. The remainder of ninety-two thousand nine hundred fourteen dollars and 15 cents ($92,914.15), plus interest accrued after February 1, 2014, shall be paid by twelve equal monthly payments made to the Agency by Lighthouse Community Services, LLC, of eight thousand one hundred sixty-eight and 63/100s dollars ($8,168.63) each, which totals ninety-eight thousand twenty -three dollars and 56 cents ($98,023.56), which includes interest. The first of the 12 equal payments of $8,168.63 shall be due on March 1, 2014, the payments shall continue and be due and owing on the first day of each month thereafter until all of the said payments are made. Interest shall accrue at the rate of ten per cent (10%) per annum on all outstanding balances. In the event of default by Lighthouse Community Services, LLC to make any payment as set forth herein, and without notice from the Agency, all amounts remaining owed pursuant to this agreement, including interest continuing until full payment has been made, shall be immediately due. 5. Upon execution of this agreement by Petitioner, and receipt by the Agency of the required initial payment, the Agency will resume processing the Petitioner’s pending application. 6. Venue for any action brought to interpret, challenge, or enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie solely in the Circuit Court in Leon County, Florida. 7. Petitioner acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the subject Notice of Intent. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. | This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. — The Petitioner, for itself and for its related or resulting organizations, their successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the Agency, 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 out of or in any way related to these matters and the Agency’s actions, 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, by or on behalf of the Petitioner or related or resulting organizations. 12. This Agreement is binding upon all parties herein and those identified in the aforementioned paragraph of this Agreement, 13. The undersigned have read and understand this Agreement and have authority to bind their respective principals to it. Thomas Scott has the capacity to execute this Agreement on behalf of Petitioner. Petitioner understands that it has the right to consult with counsel, and has consulted with counsel, who is signatory hereto. Petitioner has knowingly and freely entered into this Agreement. Petitioner acknowledges and understands that counsel for the Agency represents solely the Agency, and Agency counsel has not provided legal advice to or influenced Petitioner in its decision to enter into this Agreement. 14. In the event that Petitioner is or was a Medicaid provider at the relevant time or times of the occurrence of actions alleged in the Notices of Intent referenced herein, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues, if any, or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. This Agreement does not settle any federal issues that may be or subsequently are pending against Petitioner. 15. _ Petitioner agrees that if any funds to be paid under this agreement to the Agency are not paid when due, the Agency may deduct the amounts assessed against Petitioner in the Final Order, or any portion thereof, owed by Petitioner to the Agency from any present or future funds owed to Petitioner by the Agency, and that the Agency shall hold a lien against present and future funds owed to Petitioner by the Agency for said amounts until paid. The Agency may also seek a money judgment in any court of competent jurisdiction, including costs and attorney fees reasonably incurred therefor, and may pursue collection of unpaid funds by any other means allowed by Florida or federal law. 16. This Agreement contains the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. This Agreement may not be amended except in a writing executed with the same formality as this Agreement. Any attempted assignment of this Agreement shall be void. 18. —_ All parties agree that a facsimile signature suffices for an original signature for all purposes in connection with this Agreement. (This space intentionally left blank.) 19. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. gputy Secretary gre Administration 2727 Mahan Drive Tallahassee, Florida 32308 DATED: 3)at [ea tuart F. Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: 3ha [Iu Thomas W. Caufman, Esquire 4905 West Laurel Street Suite 200 Tampa, Florida 33607 Counsel to Petitioner patep: /-2/-/4 Scott, on behalf of ews Bay Skilled Nursing and abilitation Center 420 West Plano Parkway Plano, Texas 75093 patep: _/- /4-/7 2727 Mdhap Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: O2-(4- O14 ot! RHAIOGZEL Certified Article Number 7256 9008 9433-1372 1: iS} <4 BD] =t sto 2] 1010) =10) RICK SCOTT ELIZABETH DUDEK GOVERNOR: SECRETARY: October 17, 2013 CERTIFIED MAIL Wes STEPHANIE PENA, ADMINISTRATOR | _ RECEIVED LICENSE NUMBER: 1366095 ST ANDREWS BAY SKILLED NURSING ANBITY INTAKE UNITASE #: 2013010982 REHABILITATION CENTER 2100 JENKS AVE OCT 9.1 2019 PANAMA CITY, FL 32405 A gency for Health Care 4d i NOTICE OF INTENT TO DEEM APPLICATION COR Brite AND WITHDRAWN FROM FURTHER REVIEW , Your application for license is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that “Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall-be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited.” You were notified by correspondence dated September 11, 2013 to provide further information addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency’s correspondence. Our records indicate you received this correspondence by certified mail on September 14,2013. As this requested information was.not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: “© Pursuant to 408.831, there is an outstanding fine in the amount of $500.00 for case #200901 1135. Additionally Pursuant to section 408.831, Florida Statutes (F.S.), requires any outstanding fines, liens, or overpayments assessed by Final Order of AHCA or the Centers for Medicare and Medicaid Services by the licensee or a common controlling interest to be paid prior to license/registration issuance. In addition, failure to comply with any repayment plan may result in the denial, suspension or revocation of a license, registration or certificate, Mr. Thomas Scott is a common controlling interest for Lighthouse Community Services. A Payment Plan Agreement (Case #07-5531-000). was signed effective August 27, 2007. The provider defaulted on the payment plan. As of date, provider owes $174,857.05. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F,S., you have the right to request an administrative hearing. In order to obtain.a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), E.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ID EXPLANATION OF RIGHTS FORMS. Berdard E. Hudson, Manager Long Term Care Unit ec: Legal Intake Unit, Mail Stop 3 2727 Mahan Drive,MS#33 Tallahassee, Florida 32308 Visit AHCA online at ahca.myflorida.com Co STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION LIGHTHOUSE COMMUNITY SERVICES, LLC, Respondent, PROVIDER NO. —6767249-96 AND CASE NO. 07-5531-000 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, / AMENDED PAYMENT PLAN AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “the Agency”), and, LIGHTHOUSE COMMUNITY SERVICES, LLC, (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. This Agreement is entered into for the purpose of memorializing the resolution of the matters set forth herein, and setting forth and ratifying the balance owed on that certain Payment Plan Agreement executed by Thomas Scott on behalf of Lighthouse Community Services, LLC, on or about August 14, 2007 (hereinafter referred to as “the 2007 Agreement”), which is attached hereto and incorporated herein as though fully set forth. 2. PROVIDER is a Medicaid provider in the State of Florida. 3. This will confirm the balance of $174,857.05, together with interest through October 17, 2013 owed on the 2007 Agreement regarding the refunding of Medicaid overpayments derived from the comprehensive review of the Developmental Disabilities Home and Community-Based Services Waiver for the Medicaid provider number 6767249-96 and MPI HX Case No. 07-5531-000. The total amount is subject to statutory interest as is set forth in section 409.913(25)(c), Florida Statues. 4. The Agency and you are agreeing to all the following: (A) AHCA agrees to accept the payment arrangements set forth in this the payment plan agreement for the overpayment issues arising from the MPI Case No. 07-5531-000. (B) Contemporaneously with execution of this Agreement by Petitioner, Petitioner shall pay to the Agency in certified funds, an initial payment on February 1, 2014, of the lump sum of eighty-seven thousand, five hundred dollars and no cents ($87,500.00) of which five thousand, five hundred fifty-seven dollars and ten cents ($5,557.10) will be applied to interest. This payment, and all payments made hereunder are intended by the parties to be applied to the Lighthouse Repayment Plan (Provider Number 6767249-96/MPI Case No. 07-5 531-000). This initial payment shall be deducted from the amount of $174,857.05 owed as of October 17, 2013, on the Lighthouse Repayment Plan executed by Thomas Scott on behalf of Lighthouse, referenced herein above, plus interest accrued thereafter at the rate of ten percent (10%) per annum. Upon receipt of the initial payment, and thereafter provided that payments required by the terms hereof are timely made when due, the Agency shall consider the default by Li ghthouse on the 2007 Payment Plan to have been resolved and, other providers that have Thomas Scott as a controlling interest to be eligible for consideration for renewal and continued participation in the Medicaid program henceforth as though no default had occurred, unless and until Lighthouse Community Services, LLC breaches this agreement or other grounds for disqualification or revocation develop, that are not related to the above-referenced payment plan. The remainder of ninety-two thousand, nine hundred fourteen dollars and fifteen cents ($92,914.15), plus interest accrued after February 1, 2014, shall be paid by twelve equal monthly payments made to the Agency by Petitioner, of eight thousand, one hundred sixty-eight dollars and sixty-three cents ($8,168.63) each, which totals ninety-eight thousand, twenty-three dollars and fifty-six cents ($98,023.56), which includes interest. The first of the 12 equal payments of $8,168.63 shall be due on March 1, 2014, and the payments shall continue and be due and owing on the first day of each month thereafter until all of the said payments are made. Interest shall accrue at the rate of ten per cent (10%) per annum on all outstanding balances. In the event of default by Petitioner to make any payment as set forth herein, and without notice from the Agency, all amounts remaining owed pursuant to this agreement, including interest continuing until full payment has been made, shall be immediately due. (C) Interest at 10% per annum began October 17, 2013. (D) Failure to meet this obligation will result in the Agency recouping 100% of your Medicaid payments and/or other collection activities allowed by law in addition to potential sanctions as provided under (F. S. 409.913). By signing this agreement: (A) You confirm that you are duly authorized to enter into this repayment plan on behalf of the entity you are signing for below; (B) You expressly waive your right to a hearing pursuant to Sections 120.569 or 120.57, Florida Statutes, the making of findings fact and conclusions of law by the Agency, and all further and other proceedings to which you and any and all issues raised herein; (C) You will notify the Agency of any non-renewal, suspension or termination of your Medicaid or Medicare provider agreements; (D) PROVIDER agrees that if during the course of this Settlement Agreement, PROVIDER stops billing Medicaid or if PROVIDER’S Medicaid billings do not meet the payment amounts established in paragraph 4 (B), that AHCA shall be authorized to lien any of PROVIDER’S Medicare billings to recoup any outstanding monies owed, including all interest and costs; (E) You will notify the Agency if you file bankruptcy. 5. Payment shall be made to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable MS #14 2727 Mahan Drive, Suite Tallahassee, Florida 32308 6. 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 notice, to withhold the total remaining amount due plus interest under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid and Medicare claims. 7. 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. 8. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 9. The signatories to this Agreement represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 10. | 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. 1l. This Agreement constitutes the entire agreement between PROVIDER and the Agency regarding, and supersedes, the 2007 Agreement, 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 the AHCA other than as set forth herein. No modification or waiver of any provision of this Agreement shall be valid unless set forth in a written amendment to this Agreement, and executed by the parties with the same formalities as this agreement. 12. 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 misunderstanding or misinformation shall be a ground for rescission hereof. 13. 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, state or federal court action or any appeal. 14. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 15. 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. 16. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 17, All times stated herein are of the essence of this Agreement. 18. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. 19. This Agreement does not override any Settlement Agreement or Final Order issued prior to signing this agreement. Dated: /- /{- » 2014 Dated: kebii ing [3 » 2014 Deputy Secfetary for Operations Agency for Health Care Administration
