Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of December, 1988.
The Issue The issue for determination is whether Respondent was reimbursed by the Medicaid program for non-covered behavioral health services and was, therefore, overpaid by the Medicaid program in the amount of $17,506.76, as set forth in Petitioner's agency action letter dated March 31, 2011.
Findings Of Fact Lorraine A. Mitchell, Ph.D., LCSW, has certifications, among others, in trauma, substance abuse, and sex therapy. She treats Medicaid patients who, as described by her, other practitioners might turn-away. Dr. Mitchell became an authorized Medicaid provider of community behavioral mental health services to Medicaid recipients. As a community behavioral mental health services provider, Dr. Mitchell was issued individual Medicaid provider number 768303100 and was a Type 07 provider. At all times material hereto, Dr. Mitchell had a valid Medicaid Provider Agreement with AHCA (Agreement). The Community Behavioral Health Services Coverage and Limitations Handbook, effective October 2004, hereinafter Handbook, provides in Chapter 1 that community behavioral health services include "mental health and substance abuse services provided to individuals with mental health, substance abuse and mental health and substance abuse co-occurring disorders for the maximum reduction of the recipient's disability and restoration to the best possible functional level." The Handbook further provides, among other things, (a) that Type 07 providers are the Comprehensive Behavioral Health Assessment Provider and Specialized Therapeutic Foster Care Provider; (b) that a treating licensed practitioner of the healing arts (LPHA) must enroll as Provider Type 07 and must be affiliated with a group provider in order to be enrolled as an individual Provider Type 07; and (c) that a LPHA includes a clinical social worker, mental health counselor, marriage and family therapist, or psychologist. The Handbook was incorporated by reference into Florida Administrative Code Rule 59G-4.050, Community Behavioral Health Services. Dr. Mitchell was advised by AHCA that she was required to be affiliated with a group practice. For a period of time, Dr. Mitchell was affiliated with the Trauma Resolution Center, hereinafter TRC. The evidence demonstrates that some Medicaid payments for services rendered were paid to TRC and, in turn, TRC paid Dr. Mitchell; and that some Medicaid payments were paid directly to Dr. Mitchell. Sometime after her affiliation with TRC, Dr. Mitchell formed Mitchell and Associates. As Mitchell and Associates, the same services were provided and the same Medicaid provider number and provider type were used by Dr. Mitchell. As a result, Dr. Mitchell billed under the name of Mitchell and Associates, but continued to use her individual Medicaid provider number (768303100) and provider type (Provide Type 07). AHCA audited certain of Mitchell and Associates' Medicaid claims for the community behavioral mental health services rendered. AHCA's audit focused only on services for which billing by Mitchell and Associates, as a Provider Type 07, was not permitted. A Provider Type 07 was only authorized to bill for Comprehensive Behavioral Health Assessment services (code H0031 HA) and Specialized Therapeutic Foster Care services (codes S5145, S5145 HE, and S5145 HK). AHCA determined from the audit that, for services in 2009 and 2010, Mitchell and Associates billed for non-covered services for a Type 07 provider (services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO) in an amount exceeding $17,506.76. No dispute exists that, during 2009 and 2010, Mitchell and Associates received payment for services to Medicaid recipients, including for the services that are being disputed. Further, no dispute exists as to whether the services were provided or as to the medical necessity of the services provided. The evidence demonstrates that, for the audit of services rendered by Mitchell and Associates during 2009 and 2010, Mitchell and Associates billed for non-covered behavioral health services (services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO), and received payment for same in an amount exceeding $17,506.76. Further, the evidence demonstrates that Mitchell and Associates was overpaid by the Medicaid program in an amount exceeding $17,506.76 for the non-covered behavioral health services. AHCA seeks only the overpayment amount of $17,506.76. No dispute exists as to the accuracy of the formula used to calculate the total overpayment. At all times material hereto, Dr. Mitchell attended training sessions presented by persons, who processed Medicaid billings, in order to better understand the billing aspect as Medicaid providers. Further, Dr. Mitchell was in contact with AHCA's staff, who assisted Medicaid providers, in order to obtain a better understanding of the Medicaid provider process for Type 07 providers. The evidence demonstrates that Dr. Mitchell believed that she was billing correctly and was billing for covered behavioral health services. AHCA considers the billing by Mitchell and Associates to be a mistake, not fraud. The evidence demonstrates that the billing by Mitchell and Associates was not fraud, but was a mistake. On September 27, 2010, Mitchell and Associates was issued a group Medicaid number. Dr. Mitchell began billing under the group Medicaid provider number for services rendered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that Lorraine A. Mitchell and Associates, P.A., received overpayments from the Medicaid program for non-covered behavioral health services in 2009 and 2010 (for services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO) in the amount of $17,506.76; and Requiring Lorraine A. Mitchell and Associates, P.A., to repay the overpayment of $17,506.76, plus interest at ten percent interest from March 31, 2011, in accordance with an agreed upon repayment schedule. S DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 17th day of August, 2011.
The Issue Whether Rules 65E-5.2301(1) and (3) and 65E-5.170, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact All procedural requirements for promulgation of Rules 65E-5.2301(1) and (3) and 65E-5.170, Florida Administrative Code (the challenged Rules) were properly fulfilled. Lash has standing to litigate the validity of the challenged Rules. On September 20, 2001, Lash was admitted to the Crisis Screening and Stabilization Unit (Unit) located in Fort Lauderdale, Florida. The Unit is authorized to receive patients pursuant to that portion of Chapter 394.453 of the Florida Mental Health Act, more popularly known as the Baker Act. Following Lash’s admission to the Unit, a document entitled Certificate of Patient’s Incapacity to Consent and Notification of Health Care Surrogate/Proxy (Certificate) was executed by two physicians (Two Physicians). Pursuant to the Certificate, the Two Physicians declared Lash incompetent to consent to treatment and appointed a Third Party (Third Party) to make medical decisions on her behalf, including authorizing treatment objected to by Lash. In so doing, the parties are of the opinion that the Two Physicians were acting pursuant to the challenged Rules.
