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. ah DONE and ORDERED on this the QRH day of (eles , 2014, in Tallahassee, Florida. U- Pp IZABETH D Le fo Agency for Health Care Administration 1 AHCA vs. Boca Delray Renal Associates, Inc., C.1. 12-2163-000 Final Order Filed February 26, 2014 1:28 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: Katharine B. Heyward Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice Mail) Vanessa A. Reynolds, Esquire Broad and Cassel One Financial Plaza, Suite 2700 Post Office Box 14010 Fort Lauderdale, FL 33394 (U.S. Mail) Richard Zenuch, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance Florida Department of Health 2 AHCA vs. Boca Delray Renal Associates, Inc., C.I. 12-2163-000 Final Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that a truc 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 / day of 7 ruery , 2014. 010) 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 3 AHCA vs. Boca Delray Renal Associates, Inc., C.I. 12-2163-000 Final Order STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, CASE NO.: 12-002585MPI PROVIDER NO.: 212210300 vs. C.J. NO.: 12-2163-000 NPI NO.: 1528047909 LICENSE NO.: ME39337 BOCA DELRAY RENAL ASSOCIATES, INC., Respondent. / oo SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (*AHCA” or “Agency”), and Respondent, BOCA DELRAY RENAL ASSOCIATES, INC., (“PROVIDER”), 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 212210300, and was a provider during the audit period. 3. In its Final Audit Report, dated June 18, 2012, the Agency notified PROVIDER that a review of Medicaid claims performed by the Agency’s Office of the Inspector General, Bureau of Medicaid Program Integrity (“MPI”), indicated that certain claims, in whole or in part, were inappropriately paid by Medicaid. The Agency sought repayment of this overpayment, in the amount of forty-six thousand, two hundred dollars and eighty-eight cents ($46,200.88). Additionally, the Agency applied sanctions in accordance with Sections 409.913(15), (16), and Agency for Health Care Adina v Ooce Delay Renal Associates, Inc. Settlement Agreement Page 1 of 6 (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 nine thousand, two hundred forty dollars and eighteen cents ($9,240.18) for violation(s) of Rule 59G- 9,070(7)(e), Florida Administrative Code; and costs in the amount of forty-seven dollars and sixteen cents ($47.16). The total amount due was fifty-five thousand, four hundred eighty-eight dollars and twenty-two cents ($55,488.22). 4, In response to the Final Audit Report dated June 18, 2012, PROVIDER filed a Petition for Formal Administrative Hearing. Subsequently, the PROVIDER submitted information which was reviewed but did not reduce the overpayment. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA agree as follows: (1.) | AHCA agrees to accept the payment set forth herein in settlement of the overpayment, fine, and costs arising from the above-referenced audit. (2.) PROVIDER agrees to pay AHCA the sum of fifty-five thousand, four hundred eighty-eight dollars and twenty-two cents ($55,488.22). 3.) Asof October 23, 2013, AHCA has recouped a total of forty-six thousand, two hundred dollars and eighty-eight cents ($46,200.88). The remaining balance is nine thousand, two hundred eighty-seven dollars and thirty-four cents ($9,287.34). The outstanding balance accrues at 10% interest per year. Within thirty (30) days of entry of the Final Order, PROVIDER will make a lump sum payment of the remaining balance in the amount of nine thousand, two hundred eighty-seven dollars and thirty-four cents ($9,287.34). Should the provider’s Agency for Health Care Administration v. Boca Delray Renal Associates, Inc. (C. | No.: 12-2163-000) Settlement Agreement Page 2 of 6 enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (4.) PROVIDER and AHCA 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.I. 12-2163-000. (5.) 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. 6. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 27277 Mahan Drive, Mail Station #14 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. 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. Agency for Heatth Care Administration v. Boca Delray Renal Associates, inc. {C. |. No.: 12-2163-000} Settlement Agreement Page 3 of 6 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 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. 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 misunderstanding or misinformation shall be a ground for rescission hereof. 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, Agency for Health Cara Administration v. Boca Delray Renal Associates, inc. {C. |. No.: 12-2163-000) Settlement Agreement Page 4 of 6 actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out 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 costs, if any. This does not include the above listed costs of the investigation and audit which PROVIDER agrees to pay. 17. 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. 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. 19. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 20. All times stated herein are of the essence of this Agreement. 21. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. BOCA DELRAY RENAL ASSOCIATES, INC., , ce Dated: /) /Y , 2013 (Signed) av: Faau ces Kenusé VP (Print Name and Title) Agency for Health Care Administration v. Boca Delray Renal Associates, Inc. {C. 1. No.: 12-2163-000) Settlement Agraement Page 5 of 6 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, FL 32308-5403 Dated: U : 2046 Stuaé F. Williams, Esquire General Counsel af 7 44 rads (li ated: | A2—. 2017 im Kellum, Esquire Chief Medicaid Counsel oo ~ j cof NMA 4 wre Yow Dated: A | H org! Katharine B. Heyward, Esquire Assistant General Counsel Agency for Health Care Administration v. Boca Delray Renal Associates, Inc. (C. L.No.; 12-2163-000) Settlement Agreement Page 6 of 6 proad and Cassel /19/2012 4:18 PAGE 7/11 RightFax Juli@1212;90a © KRAUSE 5610940872 p2 RICK SCOTT ea ELIZABETH OUDEK GOVERNOR Setter Health Cure far alt Ploridiens SECRETARY MAIL 4 1 June 18, 2012 Provider No: 212210300 NPINo: 1528047909 License No.: MB39337 BOCA DELRAY RENAL ASSOC 1905 CLINT MOORE RD, SUITE 306 BOCA RATON, FL 33496 tu Reply Refer to FINAL AUDIT REPORT C.L: No, 12-2163-000 Dear Provider: The Agency for Hesith Care Administration (Agetioy), Office of Inspector General, Bureau of Medicaid Program Integrity, has comploted a review of claims for Medicald reimbursement for dates of service during the perlod April 1, 2609 through March 31, 2010, A preliminary audit repost dated May 24, 2022 waa sent to you indicating that we had determined you. were overpaid $46,200.88. Since no. documentation was produced to refute these billings, wll the claims are considered overpayments, We have determined that you were overpaid $46,200.88 for services that in whole or in part are not covered by Medicaid, A fine of $9,240.18 has been applied, The cost assessed for this audit is $47.16. The total amount duc is $55,488.22, Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), end Rule $9G-9.070, Florida Administeative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. ‘This letter shall setve as _ hotles of the following sanction(s): A fine of $9,240.18 for violation(s) of Rule Section 59G-9,076(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 aovordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes progerure codes, despriptions, policies, limitations end re ew 6, a slusti Lo. 2727 Muten Drive, M88 6 vat ee - Visit ARCA online at Tallohasseo, Florida $2308 ns Dttp;/fence.myfinride.com broad and Cassel 7/19/2012 4:18 PAGE 8/11 RightFax Jul 19 12.12:302 KRAUSE §619940872 p.3 Page 2 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 fes achedules, as prommuigated 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 discuasion 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 claims detail Is included, listing the claims that are affected by this determination. REVIEW DETERMINATIONS) 1, Florida Medicaid Provider General Handbook, dated October 2003, page 1-22 and January 2007, pago 1-26, both state: . HMO Caverage When a provider verifies 8 reciplent’s sligibilty for Medicald, he must also varity, ‘whethar the recipient ig emoited in an HMO. if a recipiant is an HMO member, the provider must esak authorization from the HMO in whioh tha recipient ie currently entotied priar ta providing services, unless ft is an emergency. W the raniplent le In an HMO, Medicald will not pay @ provider for any HiiC- covered services. Providers rust seek authorization and reimbursement from the HMC for services the HMO covers for its members. Note: See Chepler 3 in this handbook for information on verliying réciplent | eligibility and HMO enroliment. 2. Plorida Medicaid Provider General Handbook, dated July 2008, page 1-28. states: HMO Coverage When a provider varios 4 recipient's eligibility for Medicaid, he must also veuty whether the recipient ls enrolled in an HMO. Hf a recipient ip a HMO member, the provider must auak authorization from the HMO in which the recipients currently enrolled prier to providing services covered by the HMO, untess q fe an emergency. the recent in enHino, Medicaid will not pay a provider for any HMO» covered services. Providers must seek sulhorization and reimbursement the HIMG for ecrvices the HMO covers for ts members. Note: See Chapter 3.In thie handbook for information on ns verifying faciplent eligibility and HMO srvoliment Broad and Cassel dul 19 12 12:30a KRAUSE Page 3 7/19/2012 4:18 PAGE 9/11 RightFax 6619840672 pa 3. Florida Medicaid Provider General Handbook, dated July 2004, page 1-23 states: HMO Covered Services ‘The services provided under contrac! with each HMO ere negotiated with ant HMO conitecior, However, every HMO pian mvat include the following tuasle serviced up bo the limits reguirad by fae-for-sorvica iedlicaid: © Chg Hoatth Check-lip thentel health services (only in Areas 4 and 6) Dintysis trasiment in freestanding centers Durehla medical equipment and medical suppiles Family planring services Ing sarvioas Horne health services Hosplel vervoee (inpatient oisipatisnt and emergency services) ‘Laborstery satviogn, Including independent laboratory warvioes Prescribed drag servings Physlolun services (as desartbad below! Nena rect tpetadonte mentoemet {onty ih Arnas 1 and 8) 4, Fioride Modionid Provider Genoral Handbook, dated January 2007, page 1-27 and July 2008, page 1-29 both state: HMO Covered Services ‘The servicas provided.under contract wa each HMO are negotiated with each HMO contractor. Howaver, waved by ‘eeloramrvee must Inchide the folowing basic services up to the linits require s Medicald: Pr a ee Child Health Checked ot Conny nae eth sandoas : | Dialyeis treatment in feestanding centers Durable medical equipment and medica! euppitas Farnlly ptarming s services Hearing services Home health services - Hospital services (Inpatient, outpatient and emergency services) Laboratory services, Inckiding independent jaboratory services earvices Presatbed drug Physician services (as doseitbed below) . Manta! health targeted case management H broad and Vassel U/19/Z012Z 4:18 PAGE 10/11 RightFax Jul 19 42 12:31 KRAUSE 6819940672 pb Page 4 5. Florida Medicaid Provider Reimbursement Handbook , CMS-1500, dated Ootober 2003, page 1- 8, February 2006, page 1-8, and July 2008, page 1-10 all state: Bafore Completing Before Ming out the clan form, answer the following questions: Was the raciplant eligibie for Medicald on the date of service? Has tha recipient's eligiolity been vortied? Vive edPane or iM autharzation obtained, t applicable? ike service covered by Medicaid’? Was service authorization on caeee F in tue and a response received for aii tha reaivlent’s other « =Was the procedure within the service limitations’ J Ooeg thie oiaim require any f medical “ioouentaon or attachment? { Hall of he shove intenmetion is no} avakatte, review the Instruotions tn th handbaok. Hite repens tre sor, eis auwiae Yu fi out the claim form following the step-by-step {natructions for each item Medicaid fee-for-service payments have been identified for recipients thar were currently enrolled in Medicaid managed care at the time of the service. These services were covered by the managed care plan. Medicaid providers must verify recipient eligibility, including enrollment in managed care, prior 4 providing services to 8 reciplent unless it is an emergency. This Medicatd provider requirement can be referenced in the Florida Medicaid Provider Genoral Handbook. The resulting Medicaid fee-for- service reimbursements are considered overpayments, If you are eurrently involved in a bankruptey, you should notify your attorney immediatly ond provide acopy of this letter for them, Please advise your athorney thet we need the following information. immediately:. (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court nams and the division in which the potition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number ‘your attorney. If you are not in bankruptcy and you concur with our findings, remit by certiiied check the total amount reflected on page one, paragraph one, of this lefter which inolndes the overpayment amount es well as any fines imposed and assessed costs. The check must be payabis to the Florida Agency for Health Care Adminbtration. 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 mnsner and the C1 summer listed on the first page of this audit report, Please mail paymentto: Medicaid Accounts Receivable - MS # 14 Agenoy for Health Care Administration 2727 Mahan Drive Bldg. 2, 0 Tallahassee, FL, S50” Siea0t Pursuant to section 409. 913(25)(d), F.S., the s Agency may collect money owed by ail means allowable . by law, including, but not limited to, exercising the option to collect money from Medicare that is broaq and Vassel 7/19/Z012 4:18 PAGE 11/11 RightFax dul 19 12 12:31a KRAUSE 6619840672 pé Page 5 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 rolmbursoments will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, untl! such time as ths 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 ot 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 durther 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 tennination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being, imposed, Yow 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, Lf a request for an informal hearing is made, the petition must be raade in compliance with mule Ssotion 28-106,301, P.A.C. Additionally, you-are hereby informed that if request for a heating 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, Pleane see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Shert Creel, Auditor, Agency far Health Care Adwlnistration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop ¥6, Tallahassee, Florida 32308-5403, telephone (680) 412- 4008, favalmlle (850) 410-1972, or by email at Shor’.Cract@ahea.myBorids.com : bbe ee Program Administrator Office of Inspector General Medicaid Program Integrity PRISC() Enolosure(s) Copies furnished to: Finanos & Accounting (lnteroffice mail} Department of Health (DOH) (E-mail) ode sgt rs se ee APNE OE BOW Se same Pediix. us arbi S AbI2 4bOb 344) we od Sender's Copy {oi mememene ea me WaT io eet, VSOA ~|AGOn le Cpeeinnmoempe 19 psmaas omen ay 5 Shor; ~~ Sepeetee Ota” OB al ine? Sheri Cree! row $0 YO 4b eon Berson ain BATU seaiereacty er ; oe . elEx Envelope cae nat evable,Marivum cig Ose tend te _ STometfoeatyas. any __ AC et uy Tox > Health Care Admin ab own! Prokane on 5s aa Sa Mahan“. 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Detailed Results _ i Tracking no.! 889246063441 Select time format: 42H 6 Delivered Delivered Signed-for by: LAURA ‘Shipment Dates Dastination Ship date “Gui'z?; Boig ren Signature Peet af Datway™ Delivery date Jin * Shipment Options "Hold at Fedx Location a Hold at FedEx Lopation service ig not avaliable for this shipment. -Shinmen Facts _ Service type FedEx 2Day Envelo Oelivered to ReceptionisvFront Desk Reference 68103010000 Shipment Travel History” Select time zdne: Local Stan Tinie All shipment travel aotivity Is displayed in tocel time for the location cDetetine——SSCAVy SSC Dt Jun, 212 740AM____‘AlWoeal Fedixtadity __BOGARATONFL——— “Jun 28, 2012 631 AM___Aldeatinalon aoriTedily ____-FORTLAUDERDALE, FL “Sin 28,2012 300AM ‘Departed Fedextocation ___WEMPHIS,INSSSS dun 28, 2012 2:27PM tint transit iMEMPHIS, TN ¢ dun 28, 2012 6:50 AM. “Amtived at FedEx location “MEMPHIS, TN | TALLAHASSEE, FL fun 27, 2012 615 PM ‘Left FedEx origin facility : . SisenereseenseunntaeineeneneeeneeeeeeeeneneneeeneeeeeneneenmnenenennnmmeEnEnEnenneenredd http://www. fedex.com/Tracking/Detail ?trackNum=86924 6063441 &fic_start_url=&backTo=&totalPie... 7/16/2012
The Issue The issue for determination is whether Respondent committed the offense set forth in Petitioner's letter of agency action dated March 9, 2012, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, New Life was issued individual Medicaid provider number 140680900. At all times material hereto, New Life was enrolled as an assisted living facility. At all times material hereto, New Life had a valid Medicaid Provider Agreement with AHCA (Agreement). Under the Agreement, New Life was authorized to provide assistive living services to Medicaid recipients. The Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, effective July 2009, hereinafter Handbook, provides, among other things, requirements of Medicaid home health services providers and sets forth pertinent Medicaid policies and service requirements. The Handbook is provided to each Medicaid provider upon enrollment into the Medicaid program and is available online. Each provider is expected and presumed to be familiar with the Handbook. The Handbook was incorporated by reference into rule 59G-4.025, Assistive Care Services. No dispute exists that, at all times material hereto, New Life was an assistive care services provider as defined by the Handbook. The Handbook provides in pertinent part: Recipients receiving Assistive Care Services must have a complete assessment at least annually . . . or sooner if a significant change in the recipient's condition occurs . . . . An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. The assessment for a resident of a ALF . . . must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. * * * The assessment for ALF [assisted living facility] residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. * * * Along with the annual assessment requirement, all recipients receiving ACS [Assistive Care Services] must have an updated Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA- Med Serv Form 035, July 2009, signed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) and the Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, completed and available in the recipient's case file at the facility. * * * Every ACS recipient must have a service plan completed by the ACS service provider. The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, shall be used for each recipient receiving ACS. The form must be included in the recipient's case file at the facility. The ALF, RTF [residential medical facility] and AFCH [adult family care home] are responsible for ensuring the service plan is developed and implemented. * * * The Resident Service Plan for Assistive Care Services (AHCA-Med Serv Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing and based on information contained in the health assessment. . . . * * * A new service plan is required on an annual basis or sooner if a significant change in the recipient's condition occurs. The new service plan must be completed no more than 15 days after the annual assessment or an assessment because of a significant change in the recipient's condition. * * * In addition to records required by the applicable licensure standards, ACS records that must be kept include: Copies of all eligibility documents; Health Assessment Forms, AHCA Form 1823 . . .; Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA-Med Serv Form 035; The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036; and The Resident Service Log, AHCA-Med Serv Form 037. This documentation must be maintained at the facility, kept for at least five years, and be made available to the Agency for Health Care Administration monitoring or surveyor staff or its designated representative, upon request. . . . * * * ACS documentation may be in electronic format. The original, signed . . . documents must be kept in the recipient's case file in the facility . . . for audit, monitoring and quality assurance purposes. . . . Handbook at P 2-7 through 2-11. AHCA's investigator performed a site visit at New Life on December 8, 2011. The investigator reviewed case files of residents for the service-period covering January 1, 2011, through November 30, 2011 (service-period). AHCA's investigator found deficiencies in the case files of seven residents at New Life: M.B.; R.F.; E.H.; R.J.; I.M.; K.L.; and J.S. Additional documents, not contained in the case files during the site visit, were provided subsequent to the site visit. Regarding Resident M.B., the Health Assessment and the Resident Service Plan were dated August 17, 2010, which was after the service-period; and the Certification of Medical Necessity was dated March 28, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident M.B. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. As to Resident R.F., the Health Assessment was dated January 1, 2011, which was within the service-period but not up- to-date; the Resident Service Plan was up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.F. lacked the Health Assessment and Certification of Medical Necessity for the service-period. Regarding Resident E.H., the Health Assessment was dated January 24, 2011, and was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated September 27, 2002, with no more recent Certification of Medical Necessity. The evidence demonstrates that the case file of Resident E.H. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. As to Resident R.J., the parties stipulated that the Health Assessment was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.J. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. Regarding Resident I.M., the Health Assessment and the Resident Service Plan were up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-plan and after the site visit. The evidence demonstrates that the case file of Resident I.M. lacked the Certification of Medical Necessity for the service-period. As to Resident K.L., the Health Assessment was dated March 1, 2012, which was not within the service-period and after the site visit; the Resident Service Plan was not provided; and the Certification of Medical Necessity was provided, but the date as to the year was unintelligible even though the month and day were intelligible, i.e., March 1. The evidence demonstrates that the case file of Resident K.L. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. Regarding Resident J.S., the Health Assessment was dated August 22, 2009, which was not within the service-period; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and was after the site visit. The evidence demonstrates that the case file of Resident J.S. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service period. The Director and owner of New Life is Ethel Newton. Ms. Newton has been the Director and owner for the past 13 years. She was not familiar with the Health Assessment form, the Resident Service Plan form, or the Certification of Medical Necessity form. Ms. Newton advised AHCA's investigator that she was not familiar with the forms and admitted same at the hearing. Ms. Newton historically depended upon the assistance of the Department of Children and Family Services (DCF) to complete any required forms. She depended upon DCF until 2005 when DCF closed its local office which had been assisting her. After DCF closed its local office, Ms. Newton depended upon the residents' case managers at New Horizons, an agency where the residents' physicians are located, to complete any required forms. Five of the seven residents had case managers at New Horizons; J.S. and E.H. did not have case managers at New Horizons. E.H. is no longer a resident at New Life. Ms. Newton is willing to cooperate with AHCA and do whatever it takes to have the required forms completed timely and correctly. The evidence does not demonstrate that Ms. Newton intentionally failed to complete the required forms. None of the seven residents were harmed as a result of the deficiencies in the documentation. No evidence was presented demonstrating that New Life has any prior administrative sanction or penalty. No evidence was presented demonstrating that New Life has any prior violations.
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 New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility, violated Florida Administrative Code Rule 59G-9.070(7)(e) by failing to have in the case files of Resident M.B., Resident K.L., and Resident J.S. a Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident R.F. a Health Assessment and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident E.H. and Resident R.J. a Resident Service Plan and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; and by failing to have in Resident I.M.'s case file a Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; Requiring New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility to enter into a corrective action plan; and Imposing a fine against New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility in the amount of $1,750.00. S DONE AND ENTERED this 14th day of November, 2012, 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 14th day of November, 2012.
The Issue The issues to be resolved in this proceeding concern whether the Respondent Agency must be reimbursed by the Petition for purported overpayments regarding Medicaid claims, as delineated in the Respondent's Final Agency Audit Report of December 12, 2003, related to the audit period of July 1, 2000 through July 31, 2002.
Findings Of Fact The Agency is responsible for administering the Florida Medicaid program. The Agency is thus charged with a duty to recover overpayments to medical service providers enrolled in that program. The term "overpayment" means any amount not authorized to be paid by the Medicaid program, whether paid as a result of inaccurate reporting or improper reporting of costs, improper claims, unacceptable practices, fraud, abuse, or by mistake. See § 409.913.(1).(d), Fla. Stat. The Petitioner, Maria Lourdes Burgos, M.D., is a pediatrician duly licensed in the State of Florida, practicing as an authorized Medicaid provider for purposes of the relevant portions of Chapter 409, Florida Statutes, at times pertinent hereto. During the period July 1, 2000 through July 31, 2002, (the audit period) the Petitioner had a valid Medicaid provider agreement with the Respondent Agency. During the period of the audit the Petitioner provided services to Medicaid recipients or patients and submitted claims for those services and was compensated for those services. This case is a result of the Agency's attempt to recover purported overpayments from Dr. Burgos. In choosing to become a Medicaid provider, a physician such as Dr. Burgos must assume the responsibilities enumerated in Section 409.913(7), Florida Statutes (2004), which provided generally that such a provider had an affirmative duty to supervise the provision of such services and be responsible for the preparation and submission of claims. The claims are required to be true and accurate, the services are required to actually have been furnished to the recipient by the provider submitting the claim; the services are required to be medically necessary, of a comparable quality to those furnished to the general public by the provider's peers; and to have been provided in accordance with all applicable provisions of Medicaid rules, regulations, handbooks, and policies. They must be in accordance with federal, state, and local law. Additionally, the provision of medical services are required to be documented by records made contemporaneously with the provision of the services, demonstrating the medical necessity for them and the medical basis and specific need for them must be properly documented in the recipient's medical record. The "audit period" involved in this proceeding is July 1, 2000 through July 31, 2002. The Medicaid program reimbursed Dr. Burgos in excess of $43,238.57 in payments pursuant to the Medicaid program during that audit period. The Final Agency Audit Report is in evidence as Respondent's Exhibit One and the calculations pertaining to the overpayment amount are included in that report as part of Respondent's Exhibit One in evidence. The Agency contends that $43,238.57 is an overpayment and subject to recoupment because of Medicaid policy, as alleged in the Final Agency Audit Report (FAAR). Medical records reveal that some services billed, and for which payment was received, were not documented and that documentation provided supported a lower level of office visits than the one for which the Medicaid program was billed and for which payment was received by the Petitioner; and, because payments can be made only for those services listed in the provider handbook, that the Petitioner billed and received payments for services not covered by Medicaid as overpayments. The Agency furnishes all authorized Medicaid providers a manual entitled The Physician Coverage and Limitations Handbook (Handbook). The Handbook contains the requirements demanded of Medicaid providers and it and the procedure code manual (CPT) manual that was in effect during the audit period is in evidence in this proceeding. The handbook has been incorporated by reference in Florida Administrative Code Rule 59G-4.230. This handbook sets forth Florida Administrative Code Rule 59G-4.230 and sets forth pertinent applicable Medicaid policies and claims processing requirements applicable to this proceeding. Upon convening of the audit procedure, the Agency requested certain records from the Petitioner and the Petitioner fully complied with the relevant requirements of Chapter 409, Florida Statutes, submitting copies of all records dealing with the recipients who where the subject of the audit. See Exhibit Eight in evidence. The Petitioner, in effect, does not dispute the statistical methodology employed by the agency, but does dispute the manner in which it was applied to certain procedure codes (CPT codes) and the result of the overpayment calculations. Additionally, for every office visit that the Petitioner had with Medicaid patients, she personally made an individual judgment about the level of service that she provided and accordingly billed for that level of care and treatment provided. She was consistent in this in her billing practices as to both Medicaid and non-Medicaid patients. In some instances, regarding the audited Medicaid patient/recipient records, it was demonstrated by the Petitioner that the patient presented with somewhat more complexity as to medical condition that the CPT code, postulated by the Agency as applicable, represented that thus she billed for the higher code (as for instance a "99215" instead of a "99213) or "99214"). Some of these medical judgment calls made by the Petitioner were shown to be appropriate and justified and some where shown by the Respondent's evidence, chiefly the testimony of Dr. Larry Deeb, the Respondent's expert, to be not really appropriate and that they should have been coded and therefore billed at a lower level. In any event, based upon the testimony of Dr. Larry Deeb, as well as the Petitioner's testimony, the submission of both a "well child" checkup billing and a "sick office visit" billing was appropriate and consistent with good medical practice under the circumstances demonstrated by the Petitioner's testimony and her records. Thus it was inappropriate for the Agency to automatically claim an overpayment due for those billings, based upon only its policy interpretation. Additionally, based upon Ms. Mocks testimony, it is apparently an Agency policy or practice in conducting audits, and in recouping overpayments, that when errors are discovered in the audit or in the billing records which happen to be in favor of the practitioner (the Petitioner) that the Agency does not provide a credit applied to any alleged overpayment. It would seem that fundamental fairness dictates that both credits and overpayments be weighed against each other in calculating the ultimate amount of any overpayment, if one exists. In any event, based upon Dr. Deeb's testimony and the Petitioner's testimony, with regard to the random sample of patients and their medical records submitted, reviewed and involved in this dispute, the evidence demonstrates that the Petitioner was not overpaid as to the following amounts and patients/recipients: Recipient Date of CPT Disallowed/ Number Service Billed and Paid Adjusted Amount 1 12/05/00 99215 $37.59 09/05/01 99215 $60.95 2 03/05/01 99214 $15.11 3 09/19/00 99215 $13.01 4 04/04/01 99215 $60.95 5 09/15/00 99214 $15.11 05/10/01 W9881 $22.70 6 01/14/02 99215 $14.52 8 11/08/01 99214 $15.11 9 05/03/01 99205 $87.24 10 05/03/01 99205 $87.241/ 11 04/04/02 90669 $ 0.002/ 04/04/01 W9881 $37.81 04/04/01 99214 $46.42 12 10/18/01 99214 $15.11 01/18/02 99215 $29.63 01/30/02 99215 $14.52 05/20/02 99214 $15.11 13 08/14/00 99215 $13.01 14 01/31/01 99214 $15.11 08/27/01 99214 $15.11 05/13/02 99214 $24.58 15 10/17/00 99356 $50.94 Recipient Date of CPT Disallowed/ Number Service Billed and Paid Adjusted Amount 10/19/00 99233 $12.53 16 10/13/00 99215 $57.14 17 05/10/01 99215 $60.95 12/11/01 W9881 $37.81 12/11/01 99214 $46.42 20 12/22/00 99205 $17.02 22 11/19/01 99223 $42.04 11/20/00 99239 $11.53 23 03/27/02 W1998 $ 0.003/ 04/03/02 99356 $49.72 04/22/02 99215 $ 0.004/ 04/29/02 99214 $13.86 05/10/02 99215 $ 0.005/ 24 08/12/01 99356 $ 0.006/ 08/15/01 99239 $12.06 25 09/30/01 99223 $22.71 10/01/01 99233 $12.66 26 12/03/01 99356 $49.257/ 12/06/01 99239 $12.06 12/14/01 99205 $18.12 01/16/02 99215 $29.63 01/23/02 99215 $29.638/ 28 10/13/01 99431 $ 0.009/ Recipient Number Date of Service CPT Disallowed/ Billed and Paid Adjusted Amount 10/14/02 99233 $12.66 10/15/01 99239 $12.06 29 02/28/02 99356 $ 5.4210/ 03/01/02 99233 $13.80 03/02/02 99239 $13.66 03/06/02 99205 $18.67 29 03/13/02 99215 $14.52 11. The Petitioner in its Proposed Recommended Order has agreed that other than the above (Proposed Recommended Order paragraph 10 patients and amounts) that the Petitioner agrees with the Agency's review and the overpayment calculations on a per office visit basis. Additionally, however, as referenced above, there were additional health insurance claim forms which were, or should have been, submitted to the Agency, representing claims for payment for dates of service that clearly fall within the relevant audit period, that were never compensated by the Agency's contracted agent. The alternative is that the claim forms for some reason were not actually submitted. Unfortunately, neither the Petitioner's records and testimony nor the Agency records can clearly show whether the claim forms were actually submitted or not. It is apparently not possible to retrieve that information from the Agency's claim filling and payment-related computer programming system, for reasons not understood by either party or the judge. There is thus no clear explanation of record concerning why these claims were not paid earlier, even though they fall within the audited period. It is clear, however, that the additional claims referenced in the Petitioner's Exhibit Seven, admitted as a late exhibit herein, do relate to that audit period and represent medical services provided by the Petitioner within that audit period. Since that audit period and the claims referenced in evidence are the subject of a "proceeding" and are pending a "court or hearing decision . . ." or, alternatively and admittedly somewhat speculatively, could be subject of a "system error on claim that was originally filed within (12) months from date of service," it appears patently apparent that fundamental fairness dictates that these health insurance claim forms related to the same audit period should be considered and a determination made as to whether and how much of those claims should be reimbursed to the Petitioner for the medical services they represent. Thus, especially as to exception (2) to the twelve- month filing requirement listed in the above-reference handbook, Exhibit Seven has been admitted into evidence and the claim forms represented therein should be considered and the amounts payable to the Petitioner should be credited against the resultant overpayment amounts calculated as a result of these Findings of Fact.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Respondent, Agency for Health Care Administration, re-calculate the amount of overpayment in a manner consistent with the above Findings of Fact and Conclusions of Law, excluding from the amount of overpayment those amounts determined above to have not constituted overpayments. It is further RECOMMENDED that the Respondent calculate the amount of reimbursement not provided pursuant to the recently submitted or re-submitted (but never paid) Exhibit Seven health insurance claim forms, and as for the reasons indicted in the above Findings of Fact and Conclusions of Law, and credit that additional amount of reimbursement against the overpayment calculation amount in arriving at the new overpayment due from the Petitioner to the Respondent. The Petitioner shall repay the Respondent the re-calculated monetary amount of overpayment within a reasonable period of time and by reasonable installment payments, agreed to by both parties, but shall not be obligated to pay other costs or fees related to this matter. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 November, 2005.
The Issue Whether Respondent is liable for overpayment of Medicaid claims, for the period of January 1, 2004, through January 1, 2006, as stated in Petitioner’s Final Audit Report (FAR), dated July 19, 2006, due to Respondent’s failure to properly document for services billed and collected, in violation of Section 409.913, Florida Statutes (2006),1 and, if so, in what amount.
Findings Of Fact Petitioner is the single state agency under federal law, charged with administration of the Medicaid Program in Florida, and is charged with recovering overpayments to providers. Petitioner’s Bureau of Medicaid Integrity (MPI) has the primary responsibility to audit medical service providers who participate in the Medicaid program. MPI is a Bureau under the AHCA Inspector General. MPI conducts audits to review provider’s compliance with applicable statutes, rules, and policies regarding billing Medicaid for services rendered. An MPI audit is separate and distinct from an annual or other licensure survey or inspection conducted by Petitioner. The MPI audit is a compliance audit not a licensure one. MPI is mandated to review for provider fraud and abuse to ensure that the recipients are receiving the service for which Medicaid is paying. Respondent is a Florida licensed Advanced Registered Nurse Practitioner (ARNP) and provided medical services, including psychological counseling to Medicaid recipients, pursuant to a contract with Petitioner under her Provider number 302123800. Respondent participated in the Medicaid program at least from July 1, 2001, and continuously through December 31, 2005 (end of the Audit Period). Petitioner was paid for the services rendered. The audit period for Respondent was determined to be from January 1, 2004, through December 31, 2005. Claims for services were reviewed for a standard two-year audit period, and were audited for coding, records and visits. Thirty recipients were picked as a sample of recipients to examine during the two-year audit period. The selection was random and computer generated. Respondent was notified that Petitioner was conducting an audit. Respondent provided the charts on the 30 recipients to be examined and each of their claims during the audit period, which comprised all of her medical records. Gary Mosier is a Registered Nurse (RN), and holds a master’s degree in health care administration. Mosier is employed by the AHCA Inspector General, MPI, and is a nurse consultant and investigator. He was lead analyst and investigator in this matter. James Edgar, M.D., a psychiatrist with 35 years of experience, was retained by Petitioner as a peer review expert to review the charts and give a coding opinion. Billing codes are five-digit numbers. There are general guidelines for establishing the degree of difficulty which are set forth in documents such as Documentation Guidelines for Evaluation and Management Services, published by the American Medical Association. However, the correct coding can only be established through expert testimony, which is based upon established and identified criteria. With respect to each of the services reviewed, Petitioner relied upon the opinion of its expert, Dr. Edgar, as to whether or not Respondent billed Medicaid correctly. Dr. Edgar based his opinion on a review of documents regarding each service which were provided to him by Petitioner. In each instance where the Billing Code 90807, Individual Psychotherapy, Insight Orientation, appeared on Respondents charts for all 30 patients, Dr. Edgar down-coded the charts to Code 90862, medical management. He did not disallow payment, he adjusted each of them. His opinion was that, without the time spent with the patient being delineated on the medical chart, then the visit must be down-coded, or it could be denied completely. Dr. Edgar’s testimony was credible and persuasive. A Preliminary Audit Report (PAR) was sent to Respondent on September 12, 2006. The PAR informed Respondent of an alleged overpayment and explained her options prior to the completion of a FAR. It also put Respondent on notice of possible sanctions for lack of response to Petitioner. AHCA pays for mental health counseling when the face- to-face time spent with the recipient is documented. The medical records resulting from these services are required by law to be maintained for five years following the dates of service. These records must be made available when requested by Petitioner. Respondent was requested to produce office appointment sheets or calendars in order to document her face-to-face time with patients. Respondent sent non-contemporaneous time listings, rather than chart materials or office materials to verify and document time spent. There existed no charted or office records of the time spent with patients. Although Respondent testified that these time listings were implied because of the code that she submitted to Petitioner, this testimony is not persuasive in proving a material fact in dispute. The FAR was sent to Respondent on November 7, 2006, with the spreadsheet attachment. As with the PAR, it informed Respondent of the issues involved with the audit and the overpayment calculations and sought to levy a sanction, if one applied. There was no documentation in the charts of the time expended in the patient encounter, as required under the law. Although Petitioner agreed that the use of the Code 90807 implied that there was one hour of face-to-face contact with a patient, CPT policy requires both medication management and therapy, not just medication management. There was no time of service, time spent, and no start or stop times noted in the medical records. These notations are specifically required under Medicaid policy. A record must reflect the time spent face-to-face with a patient. The final overpayment calculation and final audit reports document that the overpayment to be recouped, and which Petitioner seeks, is $12,500.70, with an added sanction of $1,500.00. The preponderance of evidence has shown that Respondent was overpaid in the amount of $12,500.70, and that Petitioner is authorized to impose a penalty of $1,500.00.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order instructing Respondent to repay the sum of $12,500.70, and imposing a fine if appropriate. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 2nd day of March, 2010.
The Issue Whether Medicaid overpayments were made to Respondent and, if so, in what amount. Whether Respondent should be fined $5,000.00 for failing to document that it had available sufficient quantities of product to support its Medicaid billings.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings s of fact are made to supplement the facts (set forth above) established by admission and stipulation: Respondent's records fail to demonstrate that it had available during the Audit Period sufficient quantities of drugs to support its Audit Period billings to the Medicaid program. For these Audit Period billings, Respondent was overpaid $198,332.78, as established by the Final Audit Report, as revised by the Overpayment Reduction Document, and the supporting audit work papers, which were received into evidence at hearing and went unchallenged.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $198,332.78 in Medicaid overpayments for paid claims covering the period from April 1, 2005, through March 31, 2006; directing Respondent to repay this amount5; and fining Respondent $5,000.00 for failing to demonstrate that it had available during the Audit Period sufficient quantities of drugs to support its Audit Period billings. DONE AND ENTERED this 25th day of April, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 25th day of April, 2007.
Findings Of Fact Billings for home health care services once made CCI the recipient of substantial Medicaid moneys. By resort to, among other things, "a variety of different types of statistical investigations," (T.82) the Office of Program Integrity within HRS' Medicaid Office is "continuously asking the question, do we get what we pay for?" Id. A separate, legislative agency, a unit of the Office of the Auditor General, investigates allegations of Medicaid fraud. Investigation In February of 1990, Ellen Williams, a medical health care program analyst in HRS' Office of Program Integrity, noticed that CCI was "suddenly showing up as either number one or number two in the State, and . . . was intrigued why a home health agency in Palatka would be [b]illing to the extent it appeared that they were." T.36. She "requested a printout of their billings" (T.37) and opened a file. Not long afterwards, Ms. Williams learned that the Medicaid Fraud Control Unit (MFCU) in the Auditor General's Office "had basically a new review of the same agency." T.37. MFCU investigators copied "a number of boxes" (T.116) of CCI's records, including "pieces of files" for ten of the 49 patients whose files HRS subsequently attempted to obtain from CCI. T.53. As far as the evidence showed, MFCU did not obtain "the entire files on any of these people." Id. In early May of 1990, Ms. Williams received an unsigned investigative report the Medicaid Fraud Control Unit had prepared. On the strength of this report, at her supervisor's direction, she prepared a letter which was sent to CCI by certified mail on May 20, 1991. Petitioner's Exhibit No. 3. She did not attempt at that time to verify the allegations in the MFCU report. Prosecution The letter dated May 20, 1991, initiated a recoupment and termination proceeding, Conval-Care, Inc. v. Department of Health and Rehabilitative Services, No. 91-4020, intended to end CCI's "participation in the Florida Medicaid program for [alleged] violation of federal and state laws and regulations respecting the Medicaid program," stating: Information has been received from the Medicaid Fraud Control Unit of the Office of the Auditor General (MFCU) to the effect that you have billed and been paid $591,082.00 for services that are not covered by Medicaid. Petitioner's Exhibit No. 3. HRS also sought to recover the alleged overpayment, and impose an administrative fine. The letter did not allege times. (HRS later concluded that the overbillings alleged in the letter occurred between December of 1989 and November of 1990, but HRS never sought leave to amend to allege this, and took no other step to limit the allegations in the recoupment and termination proceeding.) In response to CCI's request for formal administrative proceedings, HRS referred Case No. 91-4020 to the Division of Administrative Hearings. Discovery and Further Investigation On September 23, 1991, while Case No. 91-4020 was pending at the Division of Administrative Hearings, HRS' Ellen D. Williams wrote CCI's Inez Browning, as follows: In order to complete the Medicaid review of services billed by Conval-Care, Inc. to the Department of Health and Rehabilitative Services, it will be necessary to obtain completed home health records on a selected statistical sample of recipients. I plan to arrive at your Palatka office on Tuesday, October 8, 1991, for the purpose of copying the records for the individuals on the attached list. Please have them available at that office. If you have any problems or questions, please call me at (904) 488-3588. Respondent's Exhibit No. 1. Although not identified as such, the list of names was purportedly a random sample of Medicaid beneficiaries to whom CCI had provided services between December of 1989 and May of 1991, a period during which CCI's alleged overbillings were even higher. In response to Ms. Williams' letter of September 23, 1991, counsel for CCI wrote Ms. Williams, on September 30, 1991, as follows: Please recall that your office, due in large part to your actions, is involved in litigation with Conval-Care, Inc. As a result, any request for documents must be pursued through appropriate discovery channels pursuant to the Florida Rules of Civil Procedure. No records will be provided as a result of your letter of September 23rd. If you appear at the door, you will be refused entry. You referred to a "statistical sample" of recipients, yet requested information concerning both recipients whose records have already been provided and the remaining recipients whose records were not provided during the initial investigation. This hardly reflects any statistical sampling. Further, your letter contradicts your sworn testimony in which you indicated there was no pending investigation of Conval-Care, Inc. by DHRS. In any event, Conval-Care, Inc. is a represented party in active litigation with your agency and neither you or any other representative from DHRS may contact Conval- Care, Inc. or any of its employees without my consent. You and others at the agency may have realized the weakness of your claims against Conval-Care, Inc., since the credibility of several of your key witnesses has been seriously undermined, but we will not permit you to go on a fishing expedition to try to develop new allegations against our client. You made your case Ms. Williams, now live with it. If DHRS must seek other documents related to the matters at issue, its attorneys should know how to do that. Respondent's Exhibit No. 2. HRS did not file any request for production in Case No. 91-4020 under Fla. R. Civ. P. 1.310(b), 1.350 or 1.351, which are applicable to administrative proceedings by virtue of Rule 60Q-2.019, Florida Administrative Code. Instead, attaching the same list of 49 names that Ms. Williams had attached to her letter of September 23, 1991, counsel for HRS wrote CCI's counsel, on October 17, 1991, as follows: Pursuant to Chapter 400.484 and 409.913 Florida Statutes, representatives of the Department of Health and Rehabilitative Services intend to copy certain records in the possession of Conval-Care, Inc. It is their intention to go to your clients place of business on Tuesday, October 22, 1991 and obtain these copies. I have attached a list of those records which are of interest. Please advise the undersigned if this date is inconvenient. Respondent's Exhibit No. 3. Some, but not all, of the listed records concerned patients for whom reimbursement between December of 1989 and November of 1990 was at issue in Case No. 91-4020. On October 21, 1991, in response to Mr. Scott's letter dated four days earlier, Respondent's Exhibit No. 3, Julie Gallagher wrote, on behalf of CCI: Section 400.487, F.S., grants HRS the authority to make "such inspections and investigations as are necessary in order to determine the state of compliance with the provisions of this act and of rules or standards in force pursuant thereto." It is our position that HRS has already made such "inspections and investigations" and has determined that Conval-Care, Inc. is not in compliance with various provisions of the statute and rules and, hence, HRS has initiated termination proceedings to exclude Conval-Care, Inc. from the Medicaid Program. Further "inspections and investigations" are not necessary as required by the statute and will, therefore, not be permitted. The other statute you cited, Section 409.903 [sic], F.S., has nothing to do with the inspection of documents. Should you desire documents from Conval-Care, Inc., which are pertinent to the issue in the pending litigation, please submit a discovery request and we will respond appropriately. Respondent's Exhibit No. 4. Insisting it had the right to inspect the records in question, HRS sent Ms. Williams to Palatka where, as CCI's counsel had forewarned, nobody from CCI was on hand to receive her. Main Case Abandoned "In the month or so preceding" (T.52) September 23, 1991, Ms. Williams came to believe "that what MFCU referred to . . . as their sample was not in fact a [random] sample . . . [and] did not encompass the entire billing period." Id. At hearing, she testified that she wanted "to determine an overpayment amount, irrespective of the termination proceeding." T.60. But at the time this desire arose HRS was seeking to recover the "overpayment amount" in Case No. 91-4020, the recoupment and termination proceeding in which final hearing was then set for October 14, 1991. HRS' counsel in the recoupment and termination proceeding relied on the attempt to obtain records Ms. Williams initiated on September 23, 1991, as his sole means of securing records that HRS listed as exhibits it intended to offer in the recoupment and termination proceeding, Case No. 91-4020. Petitioner's Exhibit No. 7.; T. 134-5. After the attempt to gather evidence in this fashion proved unavailing, and after several continuances, HRS dropped the recoupment and termination proceeding it had initiated against CCI.
Recommendation It is, accordingly, RECOMMENDED: That HRS dismiss the sanctions letter which initiated these proceedings. DONE AND ENTERED this 30th day of June, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1993.
