The Issue The issues in this case are whether Respondent, Douglas Lyday, D.V.M., committed the violation alleged in an Administrative Complaint, DPBR Case Number 2008-055022, issued by Petitioner Department of Business and Professional Regulation, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to Chapters 455 and 474, Florida Statutes. At the times material to this proceeding, Douglas S. Lyday, is and was a licensed Florida veterinarian, having been issued license number VM 6396. At the times material to this proceeding, Dr. Lyday’s address of record has been 964 Southwest 12th Street, Boca Raton, Florida 33486. Dr. Lyday’s Treatment Through the Professionals Resource Network. In July of 2006, a Dual Diagnosis Advocacy Contract (hereinafter referred to as the “July 2006 PRN Contract”), was entered into between Dr. Lyday and the Professionals Resource Network (hereinafter referred to as the “PRN”), whereby Dr. Lyday agreed to, among other things, undergo treatment for alcohol dependency and psychiatric issues. Consistent with the July 2006 PRN Contract, Dr. Lyday received in-patient treatment until July 26, 2006, when he was scheduled to begin out-patient treatment. On October 30, 2006, due to a failed urinalysis test, rather than entering out-patient treatment, the July 2006 PRN Contract was voided. On March 15, 2007, a second contract, titled a Dual Diagnosis Monitoring Contract, was entered into between Dr. Lyday and the PRN (hereinafter referred to as the “March 2007 PRN Contract”). Inconsistent with the terms of the March 2007 PRN Contract, Dr. Lyday failed a second urinalysis test on or about June 10, 2008. He failed additional tests in June and July 2008, and failed to report to PRN by telephone on a number of occasions. In August 2008 Dr. Lyday again entered inpatient treatment and, as a consequence, the March 2007 PRN Contract was voided. Subsequently, the PRN was informed that Dr. Lyday was no longer in in-patient treatment. The PRN therefore sent a letter by certified mail to Dr. Lyday’s address of record in August 2008. That letter requested that Dr. Lyday contact PRN in order to undergo an evaluation, followed by a third PRN contract. The letter also indicated that, if Dr. Lyday failed to comply, the matter would be referred to the Department. Dr. Lyday never received the August 2008 letter, despite the fact that it had been sent to his address of record. Having failed to contact the PRN as directed, the matter was referred to the Department. On February 3, 2009, the instant action was instituted. Ultimate Findings. The PRN and the Department have concluded that Dr. Lyday is “unable to practice veterinary medicine with reasonable skill or safety to patients by reasons of” “his alcohol dependency issues and his failure to comply with the terms of the treatment program offered by the Professionals Resource Network.” In support of the Department’s position, the following testimony, which is the only non-hearsay evidence in support of the Department’s position, was offered by Debra Troupe, Dr. Lyday’s PRN case manager: Q. Do you believe the respondent is fit to practice veterinary medicine with reasonable skill and safety at this point in time? A. The last contact PRN had with him, we did not believe he was able to practice [with] reasonable skill and safety. Now, we have had no contact with Dr. Lyday since mid-September 2008. In September, we asked the Department to do an emergency suspension. Lines 18-25, page 29, Transcript. Based upon Ms. Troupe’s credible testimony, the Department has proved that Dr. Lyday, as of September 2008, was unable to practice veterinary medicine with reasonable skill or safety to patients by reason of his alcohol dependency issues. The Department did not prove, however, whether Dr. Lyday continues as of the date of this de novo proceeding to be unable to practice veterinary medicine due to alcohol dependency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order dismissing the Administrative Complaint issued against Douglas Lyday, D.V.M. DONE AND ENTERED this 11th day of February, 2010, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 11th day of February, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Douglas S. Lyday, D.V.M. 964 Southwest 12th Street Boca Raton, Florida 33486 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent was overpaid $312,773.67 for claims which, according to Petitioner, did not comply with Medicaid requirements.
Findings Of Fact Petitioner Agency for Health Care Administration ("AHCA") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). At all relevant times, Respondent has been a Home and Community Based (HCB) Medicaid provider that is authorized to receive reimbursement for covered services rendered to Medicaid recipients. Developmental Disability Home and Community Based Services Waiver Program The alleged overpayment in this case relates to services Respondent provided through the Medicaid Developmental Disability Home and Community Based Waiver Program ("the Program"). As explained during Ms. Olmstead's final hearing testimony, the Program was established to help developmentally- disabled individuals remain in their homes or home-like settings within the community, as opposed to institutions such as nursing homes or intermediate care facilities. Medicaid recipients that desire to receive services through the Program undergo an initial evaluation performed by a waiver support coordinator. The support coordinator is a Medicaid provider that is selected by the Medicaid recipient or his or her guardian. To determine the services needed by the recipient to remain in the home, the support coordinator assesses the recipient by conducting an in-home visit. Upon completion of this initial assessment, the support coordinator formulates a "support plan," a document which describes the recipient's personality, likes, dislikes, strengths, and weaknesses, as well as the recipient's existing support system, such as family, friends, and neighbors. In addition, the support plan details the services the recipient needs to stay in the home and identifies who will provide the services. The expected costs of the proposed services are described on a form titled "cost plan," which, combined with the support plan, comprise the plan of care for the recipient. The support coordinator is required to submit the plan of care, as detailed in the support plan and cost plan, to the Department of Children and Families ("DCF"). If the plan of care is approved, DCF staff will create a "service authorization form." This form, which the support coordinator forwards to the service provider, describes the services to be rendered, as well as the duration and frequency of each service. Without the service authorization form, a provider cannot be assured payment from Medicaid. At least one time per year, the support coordinator must assess the recipient's needs, complete updated support and cost plans, and submit the updated plans for approval. If the updated plan of care is approved, DCF will draft a new service authorization form, which is forwarded to the provider by the support coordinator, along with copy of pertinent support plan information. Should the recipient's services or support require modification, the support coordinator is required to update the cost report and submit it for approval. Communication between the support coordinator and providers such as Respondent is encouraged, as the support coordinator reviews with the provider the goals to be achieved for the recipient. A service provider is expected to assist in establishing support plan outcomes for a recipient's goals and participate in the personal outcome process. Moreover, a service provider expressly consents to such communication by virtue of the provider's contract with Medicaid, which includes an agreement to participate in discussions with the support coordinator on matters such as a recipient's progress, the extent to which a recipient's needs are being met, and modifications to the recipient's support plan. The Preliminary Audit and Final Audit Exercising its statutory authority to oversee the integrity of Medicaid, Petitioner conducted a review or audit of Respondent's records to verify that claims paid by Medicaid during the period from January 1, 2003, through December 31, 2004 (the "audit period"), were billed and paid in accordance with Medicaid statutes, rules, and policies. As the average number of claims per recipient during the audit period was substantial, Petitioner utilized "two stage cluster sampling." This first stage involved a random selection of 34 receipts for whom Respondent submitted claims during the audit period. Next, from those 34 recipients, a total of 255 claims was randomly selected. On October 7, 2005, AHCA requested that Respondent provide "the documentation for services paid by the Florida Medicaid Program" in connection with the 255 claims that comprised the random sample. On or about October 21, 2005, Respondent submitted 37 packages of documents in response to Petitioner's request. Respondent also executed an affidavit which alleged that the documents were true and correct copies, and that the records were made at or near the time that the services were rendered. The documents submitted by Respondent were initially examined by Ms. Effie Green, a program analyst employed by Petitioner. Ms. Green immediately noticed that the records from at least some of the packages were covered in dust with a crystal-like appearance. Law enforcement officers called to the scene ultimately determined that the substance was harmless. There is no evidence that any of the records were tampered with or removed from Petitioner's offices during the investigation. On the contrary, the evidence demonstrates that the documents remained in Ms. Green's office until the dust was analyzed. Following the events described above, the audit of Respondent's records was delayed for approximately one year while an appeal, which involved a different Medicaid provider, was completed. The appeal, which was resolved in AHCA's favor, concerned the validity of the statistical formula utilized in calculating probable Medicaid overpayments.4 The responsibility of reviewing the documents provided by Respondent was later transferred to Ms. Robin Satchell, an investigator employed by Petitioner in the Bureau of Program Integrity. Prior to her employment with AHCA, Ms. Satchell worked for eight years as an HCB Medicaid provider. Ms. Satchell fully reviewed the records previously submitted on October 20, 2005, and also examined additional records subsequently provided by Respondent to verify that the claims paid during the audit period were billed and paid in accordance with Medicaid statutes, rules, and policies. Rules applicable to the claims reviewed in this case are enumerated in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook, and include: Only those services that have been identified in a recipient's plan of care and which have been approved and authorized prior to delivery are covered. Providers are limited to the amount, duration, and scope of the services described on the recipient's support plan and current approved cost plan. Only those services that are medically necessary are covered. Services furnished through the developmental disability waiver program are deemed to be medically necessary only if certain elements are present, including but not limited to the following: the service is not in excess of the recipient's needs; and, the service is furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caregiver, or the provider. In order to receive payment for services, the provider must document the service appropriately. Documentation is a written record that supports the fact that a service has been rendered. Depending upon the particular service provided (e.g., Personal Care Assistance, Homemaker Services, Chore Services), the documentation requirements may vary and are detailed in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook. On May 24, 2007, AHCA issued a Final Agency Audit Report, which alleged that Respondent was overpaid $1,647,960.81 during the audit period for services that were not covered by Medicaid. Following the issuance of the Final Agency Audit Report, and as announced at the outset of the final hearing in his matter, Petitioner now alleges that Respondent was overpaid $312,773.26. The manner in which AHCA reached the alleged overpayment of $312,773.67 is as follows: of the 255 claims examined by Ms. Satchell, 197 were allowed.5 Ms. Satchell made downward adjustments to 52 claims, and 6 were denied outright. Based upon the adjustments and denials, Ms. Satchell concluded that Respondent had received $1,287.26 in reimbursement of claims in the sample for services not covered by Medicaid, either in whole or in part. Having discovered this "empirical overpayment" of $1,287.26, AHCA employed a statistical formula to ascertain the "probable total overpayment" that Respondent received from Medicaid in connection with the total number of claims made during the Audit Period.6 As noted above, Petitioner contends that the "probable total overpayment" is $312,773.67. In her Proposed Recommended Order, Respondent asserts that with respect to the entire sample of claims, only one instance of incorrect billing occurred. In particular, Respondent concedes that that services provided to Recipient number 24 on September 2, 2003, were inadvertently overbilled in the amount of $0.96. Respondent disputes the remaining 51 downward adjustments and six outright denials, which are discussed separately below by recipient.7 Recipient No. 1 The support plan for this recipient authorized Personal Care Assistance, which is described in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: service that assists a beneficiary with eating and meal preparation, bathing, dressing, personal hygiene, and activities of daily living. The service also includes activities such as assistance with meal preparation, bed marking and vacuuming when these activities are essential to the health and welfare of the beneficiary and when no one else is available to perform them . . . . Personal Care Assistance is limited to the amount, duration and scope of the services described in the beneficiaries [sic] support plan and current approved cost plan.[8] (Emphasis added). The support plan indicates that this recipient lived with his mother and three siblings, all but one of whom were capable of completing homemaker tasks. AHCA alleges that of the five claims examined during the audit, one is problematic. In particular, AHCA contends that six of the activities performed on November 12, 2004, constituted unauthorized homemaker tasks, and therefore overbilling occurred in the amount of $12.90. According to AHCA, the unauthorized activities included organizing clothes, cleaning the kitchen, washing dishes, cleaning tables, cleaning the living room, and washing laundry. The undersigned finds that four of the six activities were unauthorized homemaker tasks: organizing clothes, cleaning the living room, washing laundry, and cleaning tables. The undersigned cannot agree, however, that Respondent inappropriately billed for washing dishes and cleaning the kitchen. Notably, and as demonstrated by the service log, meal preparation was one of the services provided to the recipient on November 12, 2004. There is no allegation that meal preparation was unauthorized, and the various exhibits submitted by AHCA plainly reveal that the service was appropriate (i.e., meal preparation was not included in AHCA's list of unauthorized activities for that date). In the undersigned's judgment, if a service provider is authorized to cook a meal for a beneficiary, it necessarily follows that the provider be permitted, and indeed expected, to wash the dishes and clean the kitchen. The undersigned's conclusion that Respondent appropriately billed for cleaning the kitchen and washing dishes is supported by the notes made by Ms. Satchell in one of AHCA's exhibits. In particular, page 3 of Petitioner's Exhibit H indicates that with respect to the October 17, 2004, services provided to Recipient No. 6 (who likewise received Personal Care Assistance), one unit of service was deducted for cleaning the kitchen because there was "no meal prep that day." The obvious implication of this notation is that cleaning the kitchen would not have been considered improper if a meal had been prepared. As Respondent was authorized to prepare a meal for the recipient on November 12, 2004, Respondent properly billed for the services of washing the dishes and cleaning the kitchen. Accordingly, the $12.90 alleged overpayment should be adjusted, as only four unauthorized activities (organizing clothes, cleaning the living room, washing laundry, and cleaning tables) were billed. Recipient No. 3 The service authorization for Recipient No. 3 provided for four hours of Homemaker Services per week. The service authorization further indicated that the Homemaker Services were intended to achieve the support plan goal of providing "the beneficiary with [a] clean environment. General household activities, such meal [sic] preparation, vacuuming, and routine cleaning." It appears from the support plan that the Homemaker Services were authorized due to the poor health of the recipient's mother. Homemaker Services are defined in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: Homemaker services are those general household activities such as meal preparation, laundry, vacuuming and routine household cleaning provided by a trained homemaker, when the person who usually handles these tasks is unable to perform them. The intent of this service is to ensure that the beneficiary's home environment remains clean, safe, and sanitary. Homemaker services are provided only when there is no one else capable of accomplishing the household tasks . . . . * * * Homemaker services shall be provided in the beneficiary's own home or family home. This service is available in the family home only when there is documentation as to why the family cannot provide the support If approved, homemaker services will be limited to the beneficiary's primary living areas such as bedroom and bathroom. This includes the kitchen and a common area, if regularly utilized by the beneficiary. (Emphasis added). On December 11, 2004, Respondent provided four hours of Homemaker Services, which were billed in the amount of $59.20. AHCA concedes that nine of the services provided on December 11, 2004, were authorized and therefore appropriately billed: making the bed; changing the bed sheets; throwing garbage away; cleaning the room; organizing the room; organizing the clothes; cleaning the bathroom; changing the towels; organizing the bathroom; vacuuming; cleaning the rugs; and meal preparation. However, AHCA contends that ten other activities provided on December 11, 2004, were unauthorized: cleaning the kitchen; washing the dishes; cleaning the tables; cleaning / organizing the cabinets; cleaning the stove; cleaning the refrigerator; cleaning the living room; washing laundry; ironing; and cleaning windows. It is evident from Ms. Satchell's notes (in the "MPI worksheet") that she found these tasks unnecessary because they occurred "outside of recipient's bedroom / bathroom."9 As a consequence, Ms. Satchell concluded that Respondent was overpaid for one hour of services in the amount of $14.80 Once again, the undersigned cannot agree that Respondent inappropriately billed for cleaning the kitchen, washing dishes, and cleaning the stove. Cooking was permitted by the service authorization, and there is no allegation that Respondent should not have billed for the meal that was prepared for the recipient on December 11, 2004. If a provider is authorized to prepare a meal, it is only logical that he or she clean up afterward and bill for the time. Nor can the undersigned agree that Respondent should not have billed for cleaning the living room, tables, windows, and refrigerator. These four activities plainly fall within the services contemplated by the service authorization, which directed Respondent to provide "the beneficiary with [a] clean environment" and carry out "general household activities . . . such as routine cleaning." Moreover, these activities are comparable to "cleaning rugs," an activity performed on the same date that was not alleged to be improper. Although, as AHCA point out, these activities may have occurred outside of the recipient's bedroom and bathroom, that fact is not controlling, as the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook provides that Homemaker Services extend to "the kitchen and a common area, if regularly utilized by the beneficiary."10 The undersigned also finds that washing laundry was not an unauthorized activity, as it falls within the definition homemaker services. Further, in light of the recipient's incontinence, washing laundry is obviously essential to achieving the support plan goal of providing "the beneficiary with [a] clean environment." The undersigned does agree with AHCA that ironing and "cleaning / organizing cabinets" were unauthorized because these activities were not related to the support plan goals. Based on the findings herein that only two of the activities were unauthorized (ironing and "cleaning / organizing" cabinets), an adjustment should be made to the alleged overpayment of $14.80. Recipient No. 6 This recipient was authorized to receive six hours of Personal Care Assistance per day. Pursuant to the support plan, Respondent was authorized to provide bathing, dressing and eating assistance to the recipient. On October 17, 2004, Respondent provided six hours of services to the recipient, at a cost of $120.96. AHCA alleges, correctly, that one of the services provided on that date, cleaning the kitchen, was unauthorized because the service documentation provided by Respondent reflects that no meal was prepared. Accordingly, the undersigned finds that Respondent was overpaid $5.04. Although Respondent has suggested that cleaning the kitchen may have been necessary due to the recipient (who is incontinent) defecating on the kitchen floor, no documentation has been provided that would support such a finding. In the absence of appropriate documentation, AHCA appropriately found that an adjustment of one unit was required for the October 17, 2004, services. Respondent also provided six hours of services to the recipient on November 26, 2004, at a cost of $120.96. With respect to this date, AHCA contends, and the undersigned agrees, that overbilling for one unit in the amount of $5.04 occurred, as one of the activities performed, "organizing clothes," constituted an unauthorized homemaker service. For the reasons expressed above, AHCA demonstrated by a preponderance of the evidence overbilling totaling $10.08 with respect to this recipient. Recipient No. 7 This recipient was authorized to receive Personal Care Assistance. Significantly, the recipient's support plan clearly indicated that her mother prepared meals for her. The service logs indicate that Respondent provided four hours of services to the recipient on the following dates: September 4 and November 25, 2003, and February 10 and April 26, 2004. AHCA contends that on each of the four dates listed above, Respondent provided the unauthorized service of meal preparation, and as a result, Respondent was overpaid a total of $18.68. As the recipient's support plan clearly indicated that meals were prepared by a parent, AHCA has demonstrated an overpayment of $18.68 by a preponderance of the evidence. Recipient No. 8 Recipient No. 8 was authorized to receive Personal Care Assistance and Companion Services, both of which were provided by Respondent. AHCA alleges that of the eleven claims reviewed pursuant to the audit, two were problematic. Specifically, AHCA contends the service logs associated with the personal care assistance provided on October 26 and November 19, 2004, were obvious photocopies of Respondent's service log from March of 2004 for the same recipient. Accordingly, AHCA asserts that the records submitted by Respondent in connection with the October 26 and November 19 services were not contemporaneous and therefore inadequate. As no contemporaneous records document the services provided on October 26 and November 19, 2004, AHCA contends that Respondent was overpaid $275.20 ($137.60 for each of the dates). The undersigned has examined the service logs for October and November 2004 for this recipient and finds that they do not constitute contemporaneous records. As such, Respondent was overpaid in the amount alleged by AHCA. Recipient No. 9 This recipient was authorized to receive Homemaker Services. AHCA alleges, and the undersigned agrees, that of the five claims audited, two involved overpayments. In particular, Respondent's service log reveals that on April 29, 2003, the unauthorized activity of "shopping" was performed. As such, Respondent was overpaid in the amount of $3.70. Further, Respondent's service log indicates that on January 7, 2004, homemaker activities were provided from 9:00 a.m. through 11:00 a.m., which included shopping and meal preparation. As noted above, shopping is an unauthorized activity. In addition, the support plan indicates that the recipient's mother was responsible for preparing meals. Accordingly, an overpayment of $3.70 occurred with respect to this date of service. For these reasons, AHCA has demonstrated a total overpayment of $7.40 in connection with this recipient. Recipient No. 10 Recipient No. 10 was authorized to receive Companion Services, which, pursuant to the support plan, were intended to help the recipient "continue to be exposed to different options in the community." AHCA contends that two of the five claims examined during the audit are problematic. First, with respect to the July 29, 2003, claim, Respondent provided no documentation to support the $49.44 billed for the four hours of service. As such, AHCA correctly determined that Respondent was overpaid in that amount. In addition, AHCA properly found that Respondent was overpaid $3.70 in connection with the September 26, 2003, services. Specifically, the service log indicates that a meal was prepared, which is an activity unrelated to the specific goals identified in the support plan. Based on the above findings, Respondent was overpaid a total of $53.14 with respect to this recipient. Recipient No. 12 Recipient No. 12 was authorized to receive eight hours of Companion Services per week. Pursuant to the support plan and service authorization, the services were intended to help the recipient be "socially active in the community." The support plan further indicated that the recipient was able to "clean her room, clean the bathroom . . . wash dishes and help her mother with chores." AHCA correctly alleges that of the five claims examined, three involved overpayments. First, for the 32 units of service provided on December 28, 2003, Respondent was overpaid $3.70 because the service log indicates that dishwashing was provided. This was obviously inappropriate because, as noted above, the support plan expressly provided that the recipient was capable of washing dishes. Next, Respondent's service log indicates that dishwashing was performed for the recipient on April 24, 2004. As such, Respondent was overpaid $3.70. An overpayment of $3.70 was also proven in connection with the July 3, 2004, services, as the service log demonstrates that the unauthorized activities of dishwashing and "organizing the bathroom" were performed. For these reasons, AHCA appropriately determined that Respondent was overpaid in the total amount of $11.10 for the services provided to this recipient during the audit period. Recipient No. 17 This recipient was authorized to receive Personal Care Assistance and Homemaker Services. Of the twelve claims reviewed concerning this recipient, AHCA alleges that only the November 11, 2004, services are problematic. In particular, a review of the service logs demonstrates that seven activities billed as homemaker services for November 11, 2004, were also provided and billed as personal care assistance for the same date. Based upon this unauthorized duplication of services, AHCA has proven that an overpayment of $14.80 occurred. Recipient No. 18 This recipient was authorized to receive forty hours of Personal Care Assistance per week. According to the support plan, the recipient lived alone with her father (who worked full time) and had little contact with her mother, who lived "far away" and visited only occasionally on weekends. The support plan further provided that the personal care assistance was intended to provide assistance with "bathing, dressing, grooming, food preparation, feeding, and transportation to . . . therapy." AHCA determined, following a review of the service logs and other documentation, that Respondent was overpaid in connection with two of the seven claims reviewed during the audit. First, AHCA alleges that Respondent was overpaid $7.72 by performing unauthorized homemaker tasks on September 19, 2003, which included shopping, washing dishes (although no meal was prepared), and assisting with household activities that would not typically be completed by an eight-year-old child. The undersigned agrees that the activities identified by AHCA in connection with the services rendered on September 19, 2003, were unauthorized, and that Respondent was overpaid in the amount of $7.72. AHCA also contends that Respondent was overpaid $7.72 in connection with the services provided on February 27, 2004. Specifically, AHCA asserts that three of the activities (shopping, laundry, and washing dishes) were unauthorized homemaker tasks. It is critical to note that in contrast to the services provided on September 19, 2003, the provider prepared a meal (as authorized by the support plan) for the recipient on February 27, 2004. As such, and for the reasons expressed previously in this Recommended Order, dishwashing should not be deemed an unauthorized activity. However, the undersigned concludes that shopping and laundry, the other two questionable activities performed on February 27, 2004, were indeed unauthorized. In light of the undersigned's finding that meal preparation was not an unauthorized activity, AHCA should make an appropriate adjustment to the February 27, 2004, overpayment. Recipient No. 19 Of the eight claims examined for Recipient No. 19, who was authorized to receive Companion Services, AHCA found fault with only one. In particular, AHCA determined that of the $59.20 billed on November 26, 2004, Respondent was overpaid $3.70 by performing the unauthorized homemaker activity of "organizing bathroom." The undersigned agrees with AHCA's finding, as organizing the recipient's bathroom is a homemaker activity that does not fall within the ambit of companion services. As such, an overpayment of $3.70 occurred. Recipient No. 20 This recipient was authorized to receive twenty hours of Companion Services per week, which were typically provided in four hour blocks from 1:00 p.m. to 5:00 p.m. Companion Services are defined in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: Companion services consist of non-medical care, supervision, and socialization activities provided to an adult on a one-on- one basis. This service must be provided in direct relation to the achievement of the beneficiary's goals per his or her support plan. A companion provider may also assist the beneficiary with such tasks as meal preparation, laundry and shopping . . . . Providers may also perform light housekeeping tasks, incidental to the care and supervision of the beneficiary. (Emphasis added). Significantly, the support plan expressly provided that the recipient "receive[d] assistance from her companion in some house chores, like cleaning the kitchen and meal preparation to avoid risky situations in the kitchen." (Emphasis added). AHCA contends that overpayments occurred with respect to four of the five claims audited. First, AHCA alleges that with regard to the November 11, 2003, services, Respondent was overpaid $3.70 by performing the unauthorized activity of "light housekeeping." The undersigned cannot agree, as the support plan plainly allowed the provider to assist the recipient with "some house chores," which is indistinguishable from "light housekeeping." Further, and as noted above, companion services may include "light housekeeping tasks, incidental to the care and supervision of the beneficiary." The service log for November 11, 2003, demonstrates that supervision was provided to the recipient. Accordingly, Respondent did not overbill in the amount of $3.70 for this date of service. Next, AHCA contends that with respect to the services provided on December 10, 2003 (which included non-medical care, supervision, shopping, and "goals and support plan assistant"), one activity was unauthorized: meal preparation. As such, AHCA alleges that an overpayment of $3.70 occurred. The undersigned concludes, based on the unambiguous language of the support plan, that meal preparation was authorized. As detailed above, the recipient "receive[d] assistance from her companion in some house chores, like cleaning the kitchen and meal preparation to avoid risky situations in the kitchen." (Emphasis added). Accordingly, an overpayment of $3.70 did not occur with respect to the December 10, 2003, services. Turning to the services provided on May 6, 2004, AHCA contends that the unauthorized activity of washing laundry resulted in an overbilling of $3.70. As referenced in the definition of companion services previously quoted, laundry may only be performed "in direct relation to the achievement of the beneficiary's goals per his or her support plan." In this instance, the documentation submitted by Respondent fails to make such a showing. As a result, AHCA correctly found that $3.70 was overbilled for this date. Finally, with respect to the May 12, 2004, services, AHCA alleges that Respondent was overpaid $3.70 for the unauthorized activity of "dishwashing." The undersigned does not agree that dishwashing was unauthorized, since the support plan contemplated that the recipient would receive assistance from a "companion in some house chores, like cleaning the kitchen." As washing dishes is integral to the process of cleaning a kitchen, Respondent was not overpaid in connection with this date of service. Based on the above findings, the total overbilling for this recipient was $3.70, which related to the May 6, 2004, services. Respondent was not overpaid in connection with the services provided on November 11 and December 10, 2003, and May 12, 2004. Recipient No. 21 This recipient was authorized to receive 20 hours of Personal Care Assistance per week, which was typically provided from 2:00 p.m. through 6:00 p.m. The support plan for this recipient, who is incontinent, reads in relevant part as follows: Food requires modification. Food needs to be blend [sic] or puree [sic] at all times to avoid choking . . . . [Recipient] arrives home around 2:00 p.m. Personal Care service changes her diaper. Then she prepares her a snack. She is [sic] assists with eating. AHCA contends that Respondent was overpaid in connection with three of the four dates of service examined during the audit. First, with respect to the services provided on April 14, 2004, AHCA asserts that two unauthorized activities were performed (organizing clothes and performing a massage), which resulted in overbilling of $3.86. Having reviewed the support plan carefully, the undersigned agrees that these activities were unauthorized and that an overpayment occurred in the amount alleged. Turning to the services provided on October 14, 2004, AHCA alleges that five unauthorized activities (providing a massage, washing dishes, changing sheets, organizing the bathroom, and cleaning a table) resulted in overbilling of $11.58. The undersigned concurs with AHCA's assertion that the activities of "massage," change sheets, organize bathroom, and clean table were unauthorized. However, overbilling did not occur for washing dishes, as the service log reveals that a meal was prepared for the recipient on October 14, 2004, an activity that was expressly authorized by the support plan. As meal preparation was permitted, washing the dishes constituted a permissible activity. In light of the above findings, AHCA should make an appropriate adjustment to the overpayment associated with the October 14, 2004, services. Finally, AHCA contends that with regard to the December 24, 2004, services, Respondent was overpaid $7.72 by providing four unauthorized activities: performing a massage, making the bed, changing towels, and cleaning the living room. The undersigned agrees that these activities were not approved and that an overpayment occurred in the amount alleged. Recipient No. 23 Recipient No. 23 was authorized to receive Personal Care Assistance, which was typically provided multiple times each week for eight hours. AHCA contends that Respondent was overpaid in connection with eight of the nine claims examined during the audit. Six of the claims involve identical issues. In particular, with respect to the services provided on August 29, 2003, and February 2, February 17, April 5, May 28, and September 13, 2004, AHCA asserts that the unauthorized activities of "make bed, meal prep, [and] clean table" resulted in overbilling totaling $60.48 (i.e., $10.08 for each of the six dates). As it appears from a review of the support plan that the recipient's mother was able to complete these activities, the undersigned agrees that overbilling occurred in the amount alleged. AHCA also alleges, and has demonstrated by a preponderance of the evidence, that $10.08 was overbilled in connection with the services provided on August 8, 2003. In particular, the activities of "played outside, played with castle set, and lunch" are beyond the scope of the services contemplated by the support plan. Finally, AHCA has met its burden with respect to the alleged $5.04 in overbilling associated with the September 10, 2003, services, as "went to pool" and "watered deck flowers before dinner" plainly constitute unauthorized activities. Recipient No. 24 As noted previously, Respondent concedes that an overpayment of $0.96 occurred with respect to this recipient. Recipient No. 25 Recipient No. 25 was authorized to receive 16 hours of Companion Services each week to assist with socialization and supervision. Of the six claims examined during the audit, AHCA contends that two are problematic. First, with regard to the services provided on January 29, 2003, AHCA contends that the entire billing for that date ($24.72) should be denied due to inadequate documentation. In particular, AHCA notes that the service log provided during the preliminary audit and final audit was different than a log submitted by Respondent in April of 2009. Further, the earlier log is vague (it merely indicates "assist household, escort activities, other") and fails to address any specific support plan activities. AHCA also points out that the later log was incomplete and failed to indicate the date of the activities. AHCA has demonstrated by a preponderance of the evidence that the services provided on January 29, 2003, were not adequately documented, and therefore Respondent was overpaid in the amount of $24.72. Next, AHCA alleges that the services provided on March 25, 2004, were not adequately documented, and therefore the entire billing of $44.40 should be denied for that date. Specifically, AHCA points out that the service log only reads "supervision" and "escort activities" and failed to address any of the activities enumerated in the support plan. Although a later service log was submitted, it was incomplete, vague, and failed to delineate which activities were performed on March 25, 2004, as opposed to the other nine dates of service during that month. For the reasons detailed above, AHCA demonstrated by a preponderance of the evidence that the March 25, 2004, services were not properly documented, and therefore the $44.40 payment should be denied. Recipient No. 26 AHCA contends that of the nine claims examined during the audit concerning this recipient, one should be fully denied due to the lack of proper documentation. Specifically, AHCA alleges that the $74.00 payment for the services rendered on May 31, 2004, should be denied outright, as the service log for May of 2004 was created by photocopying the service log for the previous month and changing the date. The undersigned has examined the documents11 and concludes that the May 2004 service log was not contemporaneously prepared. As a result, AHCA has demonstrated by a preponderance of the evidence that the $74.00 payment associated with the May 31, 2004, services should be denied. Recipient No. 28 This recipient was authorized to receive Personal Care Assistance to address daily needs such as grooming and dressing. Significantly, the support plan also indicates that meal preparation was authorized. AHCA contends that with respect to the services provided on May 15, 2003, four unauthorized homemaker activities were performed: cleaning the bathroom, washing laundry, cleaning the kitchen, and washing dishes. As a result, AHCA alleges an overpayment of $12.00, which represents four units of service. AHCA has demonstrated by a preponderance of the evidence that cleaning the bathroom and washing laundry were unauthorized. However, AHCA has failed to prove that dishwashing and cleaning the kitchen were unauthorized, as the provider prepared a meal (as indicated by the service log) for the recipient on May 15, 2003, an activity that was authorized by the support plan. As explained previously in this Recommended Order, if a provider is authorized to prepare a meal, then it is entirely reasonable for the provider to wash the dishes and clean the kitchen afterward. This is particularly true with respect to this recipient, who lived alone with her stepfather (who, according to the support plan, worked "intensive hours"), and was incapable of performing basic tasks (e.g., grooming and dressing) without assistance. Accordingly, AHCA should make an appropriate adjustment to the alleged $12.00 overpayment based on the above findings that cleaning the kitchen and washing dishes were not unauthorized. Recipient No. 29 Recipient No. 29 was authorized to receive Personal Care Assistance in the amount of two hours each weekday and five hours on weekends. Pursuant to the support plan, the recipient required assistance with basic activities such as dressing, bathing, brushing teeth, and preparing meals. AHCA contends that overbilling occurred with respect to four of the eight dates of service examined during the audit. First, AHCA alleges, and has demonstrated by a preponderance of the evidence that $10.08 was overbilled for the October 6, 2004, services, as the following unauthorized homemaker activities were performed: cleaning the recipient's room, cleaning the bathroom, organizing the room, organizing the bathroom, and changing towels. In addition, AHCA has proven an overpayment of $10.08 in connection with the November 24, 2004, services, where the service log demonstrates that unauthorized homemaker activities (identical to the services identified in the previous paragraph) were performed on that date. With regard to the services rendered on December 14, 2004, AHCA has demonstrated overbilling of $10.08 for the unauthorized homemaker services of cleaning the room and changing towels. Finally, AHCA alleges, and has demonstrated by a preponderance of the evidence, a $5.04 overpayment in connection with the December 29, 2004, services. In particular, the service logs demonstrate that the unauthorized homemaker activities of vacuuming, organizing the bathroom, and taking out garbage were performed. Recipient No. 31 This recipient was authorized to receive Personal Care Assistance, which was provided eight hours per day, Monday through Friday, and ten hours on both Saturday and Sunday. As the recipient is a quadriplegic, personal care assistance was obviously necessary for feeding and maintaining personal hygiene. Of the nine claims examined during the audit concerning this recipient, AHCA alleges that overbilling occurred with respect to two. First, with regard to the October 27, 2003, services, AHCA contends that insufficient documentation was provided by Respondent to support ten hours of billing. In particular, AHCA asserts that "ate well" is the only activity described in the contemporaneous service log.12 As a result, AHCA argues that one hour of billing should be permitted for meal prep, and that the remaining billing in the amount of $181.44 should be disallowed. Contrary to AHCA's contention, "ate well" is not the only event described in the contemporaneous service log. Significantly, the log also reads, "Incontinent B & B." Given the recipient's physical condition, this notation obviously means that the service provider was required to address at least one episode of bladder and bowel incontinence during the ten hours of service. As such, billing should be permitted for toileting. Based on the above finding that services were documented for toileting, AHCA should make an appropriate adjustment to the October 27, 2003, overpayment. Next, AHCA contends that that due to inadequate documentation, overbilling of $161.28 occurred with regard to the ten hours of services provided on February 16, 2004. In particular, AHCA contends that the documentation submitted by Respondent supports only two hours of billing, as bathing was the only activity described in the contemporaneous service log. Once again, however, the contemporaneous service log also indicates that the service provider was required to address the recipient's bladder and bowel incontinence. Accordingly, additional billing should be permitted for toileting, and AHCA should make an appropriate adjustment to the February 16, 2004, overpayment. Recipient No. 32 Recipient No. 32 was authorized to receive Personal Care Assistance and Companion Services. AHCA contends that Respondent was overpaid in connection with eight of the fifteen claims examined pursuant to the audit. With respect to the services provided on March 21 and 23, 2003, AHCA has demonstrated by a preponderance of the evidence that Respondent was overpaid $61.80 in connection with each of the two dates (totaling $123.60) where the documentation does not support the units of service billed. Next, AHCA contends, and the undersigned agrees, that Respondent inappropriately billed for recreational activities in connection with the personal care assistance services provided on August 13, 2003, and December 1, 2003. As a result, $3.86 was overbilled for each date, for a total of $7.72. AHCA also alleges, and has demonstrated by a preponderance of the evidence, that unauthorized homemaker activities were billed in connection with the companion services rendered on October 7 and 11, 2003, and December 2, 2003, which resulted in overbilling of $11.10, $11.10, and $7.40, respectively. In particular, the service logs indicate that meal prep, laundry, and housekeeping were performed on October 7 and 11, 2003, and that laundry and housekeeping were provided on December 2, 2003. Finally, AHCA has proven an overpayment of $15.44 with respect to the personal care assistance services provided on March 25, 2004. Specifically, the service log indicates that the service provider "walked the dog" and "checked live bait," tasks which do not fall within the scope of personal care assistance. Based on the above findings, AHCA demonstrated a total overpayment of $176.36 with respect to this recipient. Recipient No. 33 This recipient was authorized to receive three hours per week of Companion Services, which were intended to "increase awareness of community resources and increase community integration skills." AHCA alleges that Respondent was overpaid in connection with one of the two claims examined during the audit. Specifically, with respect to the services provided on July 15, 2003, the only activities described in the service log are "shopping" and "exercise." AHCA contends, and the undersigned agrees, that neither shopping nor exercise constitute goal oriented activities in under the circumstances of this recipient. Accordingly, AHCA has demonstrated an overpayment of $15.44, which represents one hour of billing. Recipient No. 34 This recipient was authorized to receive Personal Care Assistance. Pursuant to the support plan, the recipient lived with her able-bodied mother and older brother. Of the five claims examined during the audit, AHCA contends that Respondent was overpaid with respect to two. First, AHCA alleges that $5.29 was overpaid in connection with the August 4, 2004, services, where the service log suggested that the provider took the recipient to the park. The undersigned has examined the monthly summary, and agrees with AHCA's assessment of the documentation. Accordingly, AHCA has demonstrated an overpayment in the amount alleged. Turning to the services provided on December 9, 2004, AHCA has demonstrated an overpayment of $5.29 by a preponderance of the evidence, as "cleaning the living room" is an activity that could have been performed by the recipient's mother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that AHCA: Make appropriate adjustments to the empirical overpayment; Recalculate the probable total overpayment using the adjusted empirical overpayment and the statistical formula previously employed, and enter a final order requiring Respondent to repay AHCA the amount determined through such recalculation; The final order should further require Respondent to pay interest at the rate of 10 percent per annum on the recalculated total overpayment. DONE AND ENTERED this 23rd day of November, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 23rd day of November, 2010.
The Issue The issue for determination is whether just cause exists for termination of Respondent Mabel Johnson’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the employment of Respondent, Mabel Johnson. DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 2nd day of February, 2005.
Findings Of Fact On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee, Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician. Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985. COPIES FURNISHED: K. C. Collette, Esq. HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401 Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301 ================================================================ =
Findings Of Fact Respondent graduated from the University of Havana Medical School in 1951 and practiced medicine in Cuba from that time until he immigrated to the United States in 1960. In Cuba his practice was primarily in the fields of obstetrics and gynecology. In his application dated 9 February 1975 to take the Florida Medical Examination, Respondent listed work at Hudson County Hospital for Mental Diseases (New Jersey) in 1960, work for the American Plasma Company (Miami) from 1965 to 1968, work at the Opa Locka General Hospital from 1967 to 1970, and that he was presently working as assistant doctor at 620 Southwest 1st Street, Miami. Prior to commencing this work at the Southwest Medical Clinic he contacted Physicians's Association of Clinics, Hospitals and Annex (PACHA), an organization which helps Cuban doctors obtain Florida licenses, and was told he could work at the clinic under Dr. Tomas and should register with the Board of Medical Examiners. Respondent registered with the Florida State Board of Medical Examiners as an unlicensed physician in two undated registrations, copies of which were admitted into evidence as Exhibit 5. In the earlier registration he states he is not a naturalized citizen and in the later application he states he is a naturalized citizen, although the year of naturalization is not shown. Anne West, who was apparently running an abortion referral service, called the State's Attorneys office in Miami on behalf of Respondent and was told Respondent could work at the clinic under a licensed doctor. She subsequently became Mrs. Bulas. Respondent testified he commenced doing medical work in the Miami area in 1975 when he became associated with and worked under the supervision of Kamel Tomas, M.D. in a clinic located at 620 Southwest 1st Street, Miami. He subsequently worked at this clinic under the supervision of two other licensed doctors whose names are Hernandez and Martin. In 1976 Respondent successfully passed the Florida Medical Examination and was licensed in July 1976. While working at the clinic on Southwest 1st Street Respondent performed several abortions. In an 18-count Information filed 23 March 1978 (Exhibit 1) for the period 1 May 1975 through 5 March 1976 Respondent was charged with 11 counts of unlawful practice of medicine, 6 counts of larceny and one count of unlawful termination of pregnancy. At his trial and upon the advice of counsel he pleaded nolo contendere, was found guilty of 10 counts of unlawful practice of medicine, six counts of grand larceny and one count of unlawful termination of pregnancy, and Adjudication of Guilt was withheld (Exhibit 2). Most of these charges alleged felonies. In Exhibit 3 the court stayed imposition of sentence and placed Respondent on probation for 5 years with a condition of probation that he be confined in the Dade County Jail for a term of one year. From reading the counts of the Information, as well as from the testimony of Respondent, it is clear that the larcenies alleged resulted from the fees charged by the clinic to those patients treated by Respondent, which formed the bases for the unlawful practice of medicine counts. The information alleging unlawful termination of pregnancy was based upon the performance of an abortion by Respondent while not licensed in Florida. The testimony was unrebutted that numerous clinics in Miami employ Cuban doctors who are unlicensed in Florida. In a class conducted at Jackson Memorial Hospital to prepare former Cuban doctors for the Florida examination there were about 460 in the class attended by Respondent, most of whom worked in clinics in Miami. At the time Respondent worked at the clinic he believed that so long as he was under a licensed doctor the medical work he performed was lawful. However, Respondent was not under the direct supervision of the licensed doctor as each was working on a different patient in separate examining rooms at the same time. No evidence was presented to indicate Respondent was not fully qualified by training and experience to perform the medical practices that he performed prior to receipt of his Florida license.
