Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration, which finds and concludes as follows: 1. The Agency issued the above-named Respondent the attached Administrative Complaint. (Ex. 1) 2. The Respondent requested an administrative hearing, but subsequently withdrew the request for hearing. (Ex. 2) Based upon the foregoing, it is ORDERED: 3. The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. 4. The Respondent’s license is REVOKED. 5. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 6. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 7. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. Filed December 17, 2013 10:36 AM Division of Adnhinistrative Hearings ORDERED at Tallahassee, Florida, on this le day of Meeenher. 2013. Elizabeth Dudek, Secretary Agency for Heglth Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregs cing was furnished to the the peso named. below by electronic mail or the method designated on this {2 ay of > 2013. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston Facilities Intake Unit Assisted Living Unit Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Donah Heiberg, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Sharon Jones, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh IJ, Esquire Clay B. Adkinson, Esquire Presiding Officer Adkinson Law Firm Agency for Health Care Administration Post Office Box 1207 (Electronic Mail) DeFuniak Springs, FL 32435 ee ee (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. 3 (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue is whether Respondent properly denied Petitioner's request for immediate developmental disability services, placing him instead on a waiting list for those services due to the unavailability of funds.
Findings Of Fact There are three primary funding sources for persons with developmental disabilities: Individual and Family Supports (IFS program); Home and Community Based Waiver for Persons with Developmental Disabilities (HCBW or Medicaid Waiver program); and Intermediate Care Facility for Developmentally Disabled Clients (ICF/DD program). The IFS program is funded from the state's general revenue. Based upon available funds, this program can pay for summer camps and other services that are not available under the other two programs. The HCBW program provides a variety of services to individuals with developmental disabilities under Section 19.15 (c) of the Social Security Act. It is a federal matching dollar program with approximately 50 percent of the funds furnished by the state and 50 percent of the funds furnished by the federal Medicaid program. Unlike the IFS and ICF/DD programs, the HCBW program can pay for residential habilitation in a home or community setting. The ICF/DD program serves clients in an institutional setting under a Medicaid entitlement program. Unlike the IFS and HCBW programs, which are not entitlement programs, the funds for the ICF/DD program are not limited and do not have to be prioritized. The federal government's Health Care Finance Administration (HCFA) has to approve the state's HCBW program. HCFA's approval serves as a waiver of certain federal Medicaid requirements. The waiver allows the state to serve individuals in community-based settings instead of institutions. The approval process includes identification of the number of individuals to be served, as well as defining the services to be provided and setting forth provider qualifications. In 1998, HCFA approved Respondent's five-year plan for an HCBW program. Under the plan as amended each fiscal year, Respondent makes a commitment to serve the lesser of a target number of individuals or the number of persons authorized by the state legislature. The target number of persons was 15,302, 22,433, and 25,945 for the 1998-1999, 1999-2000, and 2000-2001 fiscal years, respectively. Any difference between the target number of individuals to be served and the actual number of individuals served is based on the funds appropriated by the state legislature. Historically, the state has not been able to serve all individuals identified as developmentally disabled. The persons who are not served are placed on a statewide waiting list. Traditionally, individuals are removed from the waiting list and begin receiving services as funds become available. Prior to the 1999 legislative session and after federal litigation, Respondent identified the number of developmentally disabled individuals who were under-served or receiving no services. Respondent made this effort in anticipation of receiving additional funding to begin eliminating the existing waiting list. At that time, Respondent identified 23,361 persons who were on the waiting list. In 1999, Respondent developed and submitted to the Legislature a two-year spending plan. The purpose of the plan was to eliminate the existing waiting list by addressing the needs of the 23,361 people over a two-year period. Respondent based the plan on data then available and the existing case load. The plan assumed that Respondent would prioritize populations and provide services in an organized manner. The two-year spending plan called for new funding in the amount of $98,167,008 for the 1999-2000 fiscal year. The plan provided for the delivery of additional services to 15,984 people in the first year (July 1, 1999 through June 30, 2000), with the remaining 7,377 people receiving services in the second year (July 1, 2000 through June 30, 2001). The two-year spending plan estimated that additional funding in the amount of $118,215,693 would be required for the 2000-2001 fiscal year to serve the 23,361 people on the waiting list. The two-year spending plan contained the following priorities: Identify those persons in crisis, both in need of residential or community-based care, and serve them in the first six months. [This goal assumed that Respondent would serve 1,590 persons identified as in crisis in the first six months of the 1999-2000 fiscal year.] Identify those persons who are eligible for ICF/DD [Intermediate Care Facilities/Developmental Disabled] (LON [Levels of Need] 3, 4, & 5) and are in need of additional services and provide services (DOE vs. Bush). [This goal assumed that Respondent would continue to serve 1,298 persons already participating in the Medicaid waiver program and begin serving 5,237 additional persons in that program by the end of the 1999-2000 fiscal year.] Provide home and community-based services to persons who wish to move from the private institutions to the community (Cramer vs. Bush). [This goal assumed that certain numbers of people would elect to move from a private ICF/DD or a nursing home to the community program in the 1999-2000 and 2000-2001 fiscal years.] Determine the unmet needs of persons living in residential care, or needing residential care (not crisis) and who are ICF/DD eligible and provide services. [This goal assumed that Respondent would provide enhanced residential care to some persons and new residential care for others.] Determine the unmet need of persons not eligible for ICF/DD (LON 1&2) and begin meeting their needs. [This goal assumed that Respondent would meet the needs of all people then on the Medicaid waiver program in the first year. It also assumed that Respondent would provide services to 25 percent of the population who were not on the Medicaid program in the 1999-2000 fiscal year with the remainder receiving services in the 2000-2001 fiscal year.] In the 1999 legislative season, the Legislature renewed funding for services provided to the existing clients of the HCBW, ICF/DD, and IFS programs. The Legislature also provided additional funding for developmentally disabled persons in the amount of $98,167,008, to meet the priorities, in order, as follows: (a) transitions for those requesting transfers from ICF/DD institutional placements into HCBW residential placements; and (b) meeting the needs of identified under-served participants in the HCBW program. The 1999 Legislature did not provide any additional funding for the IFS program that would allow Respondent to increase the number of persons served in the IFS program without decreasing services provided to existing clients. In a memorandum dated June 22, 1999, Respondent advised its district administrators that the 1999-2000 spending plan was approved. The memorandum described certain tasks that had to be completed, together with relevant time frames, before Respondent could spend the appropriated funds. These tasks included the following: (a) Serve persons in crisis; (b) Serve persons wishing to move from ICF/DD to community placements; (c) Serve persons on the waiver with unmet needs or who are under-served; (d) Serve persons eligible for ICF/DD or HCBS waiver with unmet needs; and (e) Serve persons with limited and minimal levels of need who are not enrolled in the waiver (not enrolled in HCBW and not eligible for ICF/DD or waiver.) The two-year spending plan developed by Respondent in 1999 did not take into consideration the needs of developmentally disabled persons who were not in crisis and who applied for and became entitled to services after July 1, 1999. Therefore, as non-crisis applicants qualified for services after July 1, 1999, Respondent placed their names on a second waiting list. The new waiting list grew at an unprecedented rate due to the redesigned system and the influx of additional funds. During the 2000 legislative session, Respondent requested and the Legislature appropriated sufficient funds to continue the services provided to persons in the 1999 General Appropriations Act and for an additional 7,377 persons to be served in the 2000-2001 fiscal year. Once again the new funds were earmarked as follows: (a) for clients requesting transfers from a ICF/DD program to a HCBW program; and (b) for under- served clients in the HCBW program. The Legislature earmarked all of the new funding for the HCBW program. The Conference Report on House Bill 2145, General Appropriation Act FY 2000- 2001, Section 3, Specific Appropriation No. 344, specifically stated: The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments. In accordance with the Legislature's appropriations and proviso language for the 1999-2000 and 2000-2001 fiscal years, Respondent implemented a policy to eliminate the existing waiting list for persons seeking developmental disability services. Respondent properly determined that persons with unmet needs, who were on the waiting list as of July 1, 1999, would be served before any one who applied for services after that date. According to Respondent's policy, the only exceptions would be individuals who were determined to be in crisis. Respondent's proposed budget for the 2001-2002 fiscal year calls for additional funding for clients who applied for services after July 1, 1999. Respondent projects that 6,774 additional persons would become clients or be waiting for services by the end of the 2001-2002 fiscal year--a net increase in the caseload of 2,258 people annually. Until funding becomes available, these additional people will remain on a waiting list. Under the spending plan in effect at the time of the hearing, some individuals who were on the wait list as of July 1, 1999, still are not receiving services for which they are eligible. These persons are in the process of obtaining services and must be served before persons who became or will become eligible after July 1, 1999. Petitioner became eligible for developmental services in November 1999. He does not presently qualify for services funded by the Legislature in fiscal year 2000-2001 for three reasons: (a) he became eligible after July 1, 1999; (b) he applied for IFS services, a funding category for which the Legislature did not appropriate any new funds for new clients; and (c) he is not in crisis. Additionally, Petitioner is currently having his residential training needs met through the Conklin Center, Division of Blind Services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner remain on the list of clients waiting to receive developmental disability services. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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, 2001. COPIES FURNISHED: Michael Raymond 5268 Isabelle Avenue Port Orange, Florida 32127 Cathy McAllister, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues in the case are whether Lynk Services, Inc. (Respondent), violated applicable provisions of the Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact The Florida Medicaid Developmental Disabilities Waiver Program (Waiver) provides approved health and personal services to qualified recipients. The Agency for Persons with Disabilities (APD) administers the Waiver and conducts audits of participating health care providers. The time period relevant to this case (the "audit period") was April 1, 2006, through June 30, 2006. At all times material to this case, the Respondent was the Waiver Support Coordinator (WSC) for Waiver recipient R.M. At all times material to this case, Premier Health Care (Premier) was the personal care assistance provider assigned by the Respondent to R.M. On March 31, 2006, the Respondent filed with APD, an authorization for personal care services to be provided to R.M. by Premier for the one-year period commencing on April 1, 2006. Premier filed claims for the provision of personal care service to R.M. during at least part of the audit period. The Florida Medicaid program paid the claims. Premier did not provide personal care assistance to R.M. during the audit period. The only service provided to R.M. during the audit period by a Premier employee was supervision of oxygen usage, which is not a personal care service. The Respondent did not file any request to amend the service authorization to reflect the services actually provided by Premier to R.M. An overpayment of $2,006.00 occurred, based on payment by APD for personal care services that were not provided to R.M.
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 stating that the Respondent violated applicable requirements as set forth herein and assessing a fine of $1,000 and requiring the submission of an acceptable corrective action plan. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 6th day of April, 2010. COPIES FURNISHED: Lynne Ballou, CEO, WSC Lynk Services, Inc. 2189 Cleveland Street, Suite 207 Clearwater, Florida 33765 Andrew T. Sheeran, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Thomas W. Arnold, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether obstetrical services were delivered by a participating physician in the course of labor and delivery. If so, whether notice was accorded the patient as contemplated by Section 766.316, Florida Statutes.1
Findings Of Fact Fundamental findings Petitioner, Lisa Gilcreast, is the mother and natural guardian of Kara Gilcreast, a minor. Kara was born a live infant on May 28, 2000, at Bayfront Medical Center, Inc. (Bayfront Medical Center), a hospital located in St. Petersburg, Pinellas County, Florida, and her birth weight exceeded 2,500 grams. Coverage under the Plan A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes. See also Section 766.309(1), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Kara sustained a "birth- related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. What remains in dispute is whether obstetrical services were rendered by a "participating physician" at birth. The "participating physician" issue Section 766.302(7), Florida Statutes, defines the term "participating physician," as used in the Plan, to mean: . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred . . . . And, Section 766.314(4)(c), Florida Statutes, describes the circumstances under which a resident physician, assistant resident physician, or intern may be deemed a participating physician without payment of the assessment otherwise required for participation in the Plan, as follows: . . . if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule, and is supervised by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment Supervision shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features . . . . (Emphasis added) Pertinent to this case, the proof demonstrates that the physicians providing obstetrical services during the course of Kara's birth were resident physicians3 in Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology.4 The proof further demonstrates that during that time, Dr. Karen Raimer, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (Plan), was the supervising physician, and that she was in the hospital and easily available (by beeper or overhead page through the hospital operator) to consult with or assist the residents if they requested. However, Dr. Raimer was never called by the residents, and she did not provide any obstetrical services during the course of Ms. Gilcreast's labor or Kara's birth.5 As heretofore noted, "supervision," as defined by Section 766.314(4)(c), Florida Statutes, "require[s] that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features." Here, while the supervising physician was easily available, there was no compelling proof that "the supervising physician . . . [had] a prearranged plan for treatment of specified patient problems which the supervised . . . physician . . . [could] carry out in the absence of any complicating features" (the prearranged plan for treatment). Consequently, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. In reaching such conclusion, Dr. Raimer's testimony regarding the residency program at Bayfront Medical Center, as well as her perceptions on the existence of a prearranged plan of treatment, has been considered. In this regard, it is noted that Dr. Raimer's role as supervising physician, or attending physician as it was known in the residency program, was to be available if the residents had any questions or concerns regarding patient care, and if her assistance was not requested, as it was not in this case, she did not involve herself in the labor and delivery. Under such circumstances, as is the practice in the residency program, the residents are left to manage the patient's care, with the more senior resident supervising the more junior. As for resident supervision in this case, Dr. Raimer offered the following observations: Q: And so [w]as . . . [Dr. Marler] the person for the shift on Sunday, May 28, 2000, who was responsible for the supervision of the other residents? . . . [A]s far as I remember, Dr. Marler was the chief resident on that day, the fourth-year. Q. Is there any resident that's higher than the chief resident? A. No. Q. So if he's there - A. Then he was responsible. * * * Q. So he was responsible to supervise the senior residents, the third-year residents, the second-year residents, and the first-year residents; is that correct? A. That's correct. Q. And you relied upon him to do that? A. Yes. [Joint Exhibit 2, pages 50 and 51] As for a preexisting plan of treatment, Dr. Raimer offered the following observations: Q. Now, in May 2000, did you have any prearranged plan of treatment for specified patient problems which the resident may carry out in the absence of any complicating features? All of the residents in their training as they go through the four years, it’s a cumulative knowledge base and experience base that develops. And by the time that they get through their fourth year and about to graduate and get to that point, if they are a fourth-year, we feel that they are competent in knowing how to manage cases that have complicating features, and if not, they can call their attending physician. * * * . . . [Again], residents during their training are expected to learn how to manage patients throughout their four years of experience. And, again, by the time they get to their fourth year, they are expected to know how to manage patients on an obstetrical unit and manage complicating features. If there is any concern or any question, they are to call their attending physician. [Joint Exhibit 2, pages 47 and 48] From Dr. Raimer's testimony, it is apparent that, unless requested to do so, the supervising physician does not participate in the preparation of a plan of treatment. Rather, it is customary, as was done in the instant case, for the chief resident to develop the plan. Therefore, as heretofore noted, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. The notice issue Pertinent to the notice issue, the proof demonstrates that Ms. Gilcreast received her prenatal care at Bayfront Women's & Children's Health Center (the Clinic), an outpatient facility established by Bayfront Medical Center to provide obstetrical services to lower income families in mid-Pinellas County, and located at 7995 66th Street, North, Pinellas Park, Florida. Staffing at the facility included faculty of, and residents participating in, Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology, as well as two perinatologists and three nurse midwives, all of whom were employed by Bayfront Medical Center.6 Notably, at her first visit to the Clinic, Ms. Gilcreast (age 18, with her first pregnancy) met with Cynthia McNulty, a patient representative, for a new patient orientation. During that orientation, which lasted from 45 minutes to 1 hour, Ms. McNulty addressed a number of matters with Ms. Gilcreast, including financial matters (Florida Medicaid), Healthy Start (for which Ms. Gilcreast filled out an application), W.I.C. (a nutritional counseling program and monthly food check program), the prenatal care plan she could expect at the clinic, and who to contact in case of emergency. Ms. McNulty also provided Ms. Gilcreast with an American Baby Basket packet (which contained parenting and educational materials, as well as samples of baby products), magazines for parenting and breast feeding, and scheduled her next appointment. Finally, at some point during the orientation, Ms. McNulty showed Ms. Gilcreast a brochure titled "Peace of Mind for an Unexpected Problem."7 That brochure, prepared by NICA,8 contains a concise explanation of the patient's rights and limitations under the Plan; however, Ms. McNulty described the brochure as a . . . $100,000 . . . insurance policy, that . . . [if] the baby was neurologically injured . . . the parents would collect $100,000, and any further questions they could call the association, . . . [at] the number . . . on the back, or talk to the physicians. [Transcript, pages 68 and 69.] Copies of all the papers they discussed, including the NICA brochure, were placed in the American Baby Basket packet, a clear plastic bag, by Ms. McNulty and given to Ms. Gilcreast. Subsequently, Ms. Gilcreast discarded many of the materials she received during the orientation, and there is no proof of record that would lead one to conclude that she read the NICA brochure or was otherwise informed of its actual contents.
The Issue Whether Emma Mae Giroux, a deceased minor, suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of her birth, as required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement, with the nurse midwife, participating physician, and the participating physician's professional association, bars them from recovery under the Plan. Whether the Division of Administrative Hearings must resolve whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan coverage and pursue such a civil suit.
Findings Of Fact The parties' stipulation By their Pre-Hearing Stipulation, filed October 11, 2002, the parties agreed, as follows: The parties, specifically the Petitioners, the Respondent, and Intervener, AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, and further to the Status Conference conducted on October 3, 2002, and in lieu of the ALJ conducting a trial of this matter, due stipulate and agree as to the following as a predicate for the ALJ's ruling on the issue of compensability of this claim, to wit: FACTUAL STIPULATIONS That the Petitioners are the legal representative of the deceased minor child. That Emma Mae Giroux was delivered at North Ridge Medical Center on May 3, 1999, and weighed in excess of 2500 grams. That Donna Hamilton was a certified nurse midwife who provided obstetrical services and was present at the birth of Emma Mae Giroux. That Ronald Tuttleman, M.D. was a participating physician in the NICA Plan for 1999. That Donna Hamilton acted under the direct supervision of Ronald Tuttleman, M.D. and that obstetrical services were therefore provided by a participating physician in the NICA Plan, including by virtue of Dr. Tuttleman ordering Pitocin for Kristina Giroux at approximately 12:30 p.m. on May 3, 1999. That Emma Mae Giroux sustained a "birth- related neurological injury" as defined by §766.302, Fla.Stat. That Emma Mae Giroux passed away on May 10, 1999. That proper notice in accordance with §766.316, Fla.Stat., was provided by North Ridge Medical Center prior to delivery. Although the issue of notice by Dr. Tuttleman is moot, the Petitioners acknowledged that Dr. Tuttleman did provide notice to Kristina Giroux of his participation in the NICA Plan prior to delivery pursuant to §766.316, Fla.Stat. LEGAL STIPULATIONS 1. That during the pendency of this action, the Petitioners unilaterally negotiated a settlement with the other interveners, specifically, Donna Hamilton, C.N.M. ("Hamilton") and Ronald M. Tuttleman, M.D. & Ronald M. Tuttleman, M.D., P.A. (Collectively "Tuttleman"), for the total sum of $350,000.00. The Petitioners having elected to receive this civil settlement from the Interveners, Hamilton and Tuttleman, acknowledge that the Petitioners may not receive any benefits from the Respondent under the NICA Plan, pursuant to §766.301, et seq., including specifically pursuant to §766.303(2) & §766.304, Fla.Stat. The Petitioners do reserve the right to proceed against North Ridge Medical Center solely under the statutory exceptions based on theories of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, if and as applicable. North Ridge Medical Center, by entering into this Stipulation, does not waive any of its rights or immunities under the NICA Plan and does not stipulate to the effect of Petitioners' aforedescribed civil settlement. EVIDENTIARY STIPULATIONS The parties do further stipulate as follows in the event an Evidentiary Hearing is rendered unnecessary by this Stipulation: The medical records filed and attached to the Petition shall be admitted into evidence. The medical report of Donald Willis, M.D. dated April 2, 2002, and attached to NICA's Notice of Compensability and Request for Hearing, shall be admitted into evidence. There are no further medical records to be admitted into evidence in this administrative proceeding, and no depositions shall be admitted into evidence in this administrative proceeding. That the Administrative Law Judge shall enter a Final Order with his legal rulings based upon the Stipulated Facts set forth herein, and based upon any other matters appearing within the pleadings and records on file. Consistent with the terms of the parties' stipulation, the medical records filed with DOAH on March 11, 2002 (marked Joint Exhibit 1) and the medical report of Donald Willis, M.D., filed with DOAH on April 10, 2002 (marked Joint Exhibit 2) were received into evidence. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when an infant suffers a "birth-related neurological injury," defined as an injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties agree, and the proof is otherwise compelling, that Emma suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim qualifies for coverage under the Plan; however, given Petitioners' settlement with the nurse midwife and participating physician, and for reasons appearing more fully in the Conclusions of Law, Petitioners are foreclosed from pursuing an award under the Plan. Jurisdiction
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physicians gave the patient notice, as contemplated by Section 766.16, Florida Statutes, or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Jennifer Castillo and Peter Borowiak, are the natural parents and guardians of Lievens Borowiak, a minor. Lievens was born a live infant on April 18, 2001, at Jackson Memorial Hospital, a hospital owned and operated by the Public Health Trust in Miami, Dade County, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during the course of Lievens' birth by Salih Y. Yasin, M.D., Mary Jo O'Sullivan, M.D., Armando Hernandez, M.D., and Victor H. Gonzales-Quintero, M.D., who, at all times material hereto, were "participating physicians" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. More particularly, Doctors Yasin, and O'Sullivan, were members of the faculty at the University of Miami, School of Medicine, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. These physicians, referred to as attending physicians, were "participating physician[s]" in the Plan, since the assessment required for participation had been paid on their behalf by the University of Miami. Doctors Hernandez and Gonzales-Quintero were "participating physician[s]," since they were residents in the Trust's postgraduate residence program in obstetrics and gynecology, and were exempt from payment of the assessment. §§ 766.302(7) and 766.313(4) and (5), Fla. Stat. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Lievens suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to an award When it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes (2000),2 provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Jennifer Castillo and Peter Borowiak, as the parents of Lievens, be awarded $100,000.00, to be paid in lump sum, and $8,321.44 for attorney's fees ($8,000.00) and costs ($321.44) incurred in connection with the filing of the claim. § 766.31(1)(b) and (c), Fla. Stat. The parties have further agreed that no monies are owing for past expenses, and that Respondent pay future expenses as incurred. § 766.31(1)(a) and (2), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity in a pending civil action, by averring that the healthcare providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Association, 30 Fla.L.Weekly D452a (Fla. 2d DCA February 16, 2005)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary.") Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which included a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of the brochure to their obstetrical patients. (Intervenors' Exhibit 1) Here, given the provision of Section 766.316, Florida Statutes, the hospital and attending physicians (Doctors Yasin and O'Sullivan), provided they had a reasonable opportunity to do so, were required to provide pre-delivery notice. Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation a reasonable time prior to delivery."); Board of Regents v. Athey, 694 So. 2d 46, 50 (Fla. 1st DCA 1997)("[H]ealth care providers who have a reasonable opportunity to give notice and fail to give pre- delivery notice under section 766.316, will lose their NICA exclusivity . . . .). Doctors Hernandez and Gonzales-Quintero, as residents, deemed to be a participating physician under Section 766.314(4)(c), Florida Statutes, were not required to provide notice. Findings related to notice At or about 9:45 a.m., Wednesday, April 11, 2001, Ms. Castillo, aged 23, with an estimated delivery date of April 26, 2001, and the fetus at 38 weeks' gestation, presented to Jackson Memorial Hospital (JMH) on the advice of her primary care physician, as a high-risk pregnancy, secondary to cardiac dysfunction. Notably, Ms. Castillo had a history of congenital heart disease, with cardiac surgery at aged 10 for transposition of the great vessels, and a recent diagnosis of marked pulmonary hypertension and severe aortic insufficiency. Under the circumstances, Ms. Castillo's primary care physician concluded delivery at a community hospital was inadvisable, and he referred her to JMH for evaluation, as to the timing of, as well as the management of, her delivery. On presentation, Ms. Castillo was initially assessed in OB Triage. At the time, existing protocol required that, following initial assessment, "[t]he HUS/Nurse places the patient on the triage log (in the computer at JMH) and gives the 'Peace of Mind' (OB) and 'Advance Directives' brochures in their respective languages." (Petitioners' Exhibit 11) Here, the proof demonstrates that Phyllisan Goodwin, an LPN employed by the hospital, initially assessed Ms. Castillo in OB Triage, and completed the Triage Treatment Record, which documented that, consistent with existing protocol, she provided Ms. Castillo with a copy of the Advanced Directives pamphlet and the Peace of Mind (NICA) brochure. (Intervenors' Exhibits 3 and 10) At or about the same time, Nurse Goodwin gave Ms. Castillo a General Consent for Treatment form. (Intervenors' Exhibit 2) That form, insofar as Intervenors deem it pertinent to the notice issue, included the following provisions: I, the undersigned patient or Jennifer Castillo (name of authorized representative acting on behalf of patient) consent to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment of my illness(es) by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital (PHT/JMH) and the University of Miami School of Medicine, including medical students. I have been told the name of the physician who has primary responsibility for my care, as well as the names, professional status and professional relationships of other individuals who will be involved in my care. It has been explained to me that in a large teaching hospital environment like the Public Health Trust/Jackson Memorial Hospital, there may be additional or other physicians and staff involved in my care as well. The consent was signed by Ms. Castillo, and witnessed by Nurse Goodwin, at 11:32 a.m., April 11, 2001. Following triage, Ms. Castillo was admitted to the antepartum floor for further evaluation and management. There, Ms. Castillo was evaluated by Charmin Campbell, LPN, who completed the OB Nursing Admission Assessment, which included the observation that Ms. Castillo had previously received the Advanced Directives and the Peace of Mind brochures. (Intervenors' Exhibit 4) Ms. Castillo's subsequent hospital course was summarized in Dr. Yasin's Discharge Summary, as follows: The Patient was admitted for a cardiology workup in preparation for a controlled delivery. She was seen by both anesthesia and cardiology. Cardiology recommended an echocardiogram to evaluate heart function which was done and the patient was found to have sever pulmonary hypertension with moderate right ventricular dysfunction and dilatation in addition to a moderate aortic insufficiency. The patient also had an official ultrasound which showed IUGR [intrauterine growth retardation] . . . . After long consultation with both anesthesia and cardiology the plan was made on April 13th to induce the patient in a controlled setting on [Monday] April 16th. It was felt that the patient would benefit from a central line and that she would deliver on the labor floor, because with the IUGR should the patient need a cesarean section it could potentially be stat, and a better outcome would be ensured by delivering the patient on the labor floor as opposed to the cardiac care unit. The patient while on antepartum had daily NST'S [nonstress tests]. She was followed closely both by cardiology and anesthesia. On April 16th the patient went to the labor floor for an induction. The induction continued and the patient delivered on April 18th. It was a baby boy with Apgar scores of 2 4 5. The infant weighed 2,641 grams. The delivery was vacuum assisted secondary to poor maternal effort, and it was noted that there was a tight nuchal cord times one. Both anesthesia and cardiology were present at the delivery. Postpartum the patient went to the cardiac care unit for close monitoring. The following day she was sent to the normal postpartum floor. The patient was doing incredibly well. She was asymptomatic. No shortness of breath. She had no chest pain. She was ambulating without difficulty. She was discharged home on postpartum day number two. (Petitioners' Exhibit 5A, page 004.) See also Petitioners' Exhibit 5A, pages 024-027, Dr. Yasin's progress note of April 13, 2001, and Petitioners' Exhibit 5A, pages 093-095, Dr. Yasin's Vaginal Delivery Record. Notably, during the 5 days that preceded induction of labor, Ms. Castillo was continuously monitored by hospital staff; underwent numerous evaluations, by cardiology, radiology, and anesthesiology, among others; and was called upon to sign a number of forms, in addition to the General Consent for Treatment form discussed supra, including: an Advance Directives Checklist, on April 11, 2001; a Consent to Operations or Procedures for a chest x-ray, at 5:00 p.m., April 11, 2001; a Release of Liability for Loss of Personal Property, at 12:45 a.m., April 12, 2001; a Consent Form for sterilization, on April 13, 2001; a Consent to Operations or Procedures for the delivery of her child, at 6:30 a.m., April 16, 2001; and, a Consent to Operation or Procedures for a chest x-ray, at 10:50 a.m., April 16, 2001. (Petitioners' Exhibit 5B) Moreover, the record reveals that during that 5-day period, Doctors Yasin and O'Sullivan, the attending physicians, provided obstetrical services to Ms. Castillo on numerous occasions; on April 16, 2001, Dr. Yasin supervised Ms. Castillo's induction; and on April 18, 2001, Dr. Yasin delivered Lievens. Consequently, the hospital and the attending physicians had numerous opportunities to provide notice to Ms. Castillo. It is also notable that, on presentation to JMH at 9:45 a.m., April 11, 2001, Ms. Castillo was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after 11:55 a.m., April 16, 2001, when labor was induced, with Petocin. More particularly, there was no "evidence of the onset and persistence of uterine contractions[3] or rupture of the membranes[4]" until after her labor was induced. Moreover, there was no proof that, upon admission or until her labor was induced, "there was inadequate time to effect safe transfer to another hospital prior to delivery" or "[t]hat a transfer may pose a threat to the health and safety of the patient or fetus." Consequently, until some time after 11:55 a.m., April 16, 2001, some 5 days after she presented to the hospital, Ms. Castillo did not have an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, that would have excused the giving of notice. Moreover, there was no proof to support a conclusion that the giving of notice was not practicable. Resolution of the notice issue, with regard to the hospital With regard to the hospital and the notice issue, the more persuasive evidence supports the conclusion that, more likely than not, Nurse Goodwin, consistent with established practice, provided Ms. Castillo a copy of the NICA brochure in OB Triage. In so concluding, it is noted that the giving of notice in OB Triage was an established protocol (Petitioners' Exhibit 11); the Triage Treatment Record prepared by Nurse Goodwin documented that the NICA brochure was provided (Intervenors' Exhibit 3); except for the entry regarding the NICA brochure, Ms. Castillo acknowledged the information Nurse Goodwin entered in the Triage Treatment Record was accurate (Intervenors' Exhibit 7, pages 52-53); it is unlikely, given such consistency, Nurse Goodwin would not have also provided Ms. Castillo with the NICA brochure; and Ms. Castillo's possession of the NICA brochure, following OB Triage, was confirmed by Nurse Campbell on the Nursing Assessment Record, when Ms. Castillo was admitted to the antepartum floor (Intervenors' Exhibit 4). Consequently, the proof compels the conclusion that the hospital complied with the notice provisions of the Plan. Resolution of the notice issue, with regard to the attending-participating physicians With regard to the attending physicians and the notice issue, it is undisputed that the attending physicians never provided notice, and relied on the hospital to provide notice on their behalf.5 Therefore, to demonstrate compliance, Intervenors posit that, "under the circumstances of this case," the notice the hospital provided was sufficient to satisfy both its notice obligation, and that of the attending physicians. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraph B) The "circumstances" were stated to be, as follows: Upon presenting at the OB Triage, Ms. Castillo was provided an English- language NICA Peace of Mind brochure by Phyllisan Goodwin, LPN, who electronically notated Ms. Castillo's chart on the triage treatment record to that effect. At or about the same time that she received the NICA brochure, Ms. Castillo signed an English-language General Consent for Treatment form, wherein Ms. Castillo consented to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital and the University of Miami School of Medicine. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraphs E10 and 11). Given such "circumstances," Intervenors contend that a patient, similarly situated as Ms. Castillo, would reasonably conclude from the delivery of the NICA brochure and the General Consent for Treatment form, that the brochure was given on behalf of the hospital and the attending physicians. (Hospital Proposed Final Order, paragraph 18) However, Intervenors do not suggest, and the proof does not support a conclusion that, the notice also disclosed, or compelled a conclusion that, the attending physicians were "participating physician[s]" in the Plan. Here, contrary to Intervenors' contention, it must be resolved that the notice provided by the hospital did not satisfy the attending physicians' obligation. In so concluding, it is noted that the General Consent for Treatment form is clearly unrelated to NICA notice, and the duality of purpose Intervenors contend the brochure was intended to serve, as notice for the hospital and the participating physicians, was not communicated to the patient. Moreover, a reading of the brochure would not, absent speculation, lead one to believe the brochure was also given on behalf of the physicians, and the brochure did not inform the patient that any physician was a "participating physician" in the Plan. Indeed, the brochure simply stated: You are eligible for this protection if your doctor is a participating physician in the Association. Membership means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. (Emphasis added) Consequently, although joint notice may have been the intention of the hospital, and the expectation of the attending physicians, the notice provided was inadequate to achieve that purpose.6
The Issue At issue in this proceeding is whether Giuliano Gugelmin, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Mauricio Gugelmin and Stella Gugelmin are the parents and natural guardians of Giuliano Gugelmin (Giuliano), a minor. Giuliano was born a live infant on July 14, 1994, at South Broward Hospital District, d/b/a Memorial Hospital West (the Hospital), a hospital located in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Giuliano was Eric N. Freling, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who have suffered a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the parties have stipulated that Giuliano suffered a "birth- related neurological injury," as that term is defined by the Plan, and NICA proposes to accept the claim as compensable. The parties' stipulation is grossly consistent with the proof and, consequently, it is resolved that NICA's proposal to accept the claim as compensable is approved. While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in the collateral civil action by claiming that the health care providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged, proper notice was given. Regarding the notice issue, it must be resolved that the proof failed to demonstrate, more likely than not, that Dr. Freling provided Mrs. Gugelmin any notice of his participation in the Plan or any explanation of a patient's rights and limitations under the Plan. Indeed, the more compelling proof was to the contrary. Moreover, there was no proof to support a conclusion that Dr. Freling's failure to accord notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. While Dr. Freling failed to give notice, the Hospital did, as required by law, provide timely notice to Mrs. Gugelmin as to the limited no-fault alternative for birth-related neurological injuries. That notice included, as required, an explanation of a patient's rights and limitations under the Plan, and was given at 11:45 a.m., July 13, 1994, shortly after Mrs. Gugelmin's admission to the hospital (which occurred at approximately 11:22 a.m., July 13, 1994). Giuliano was delivered at 12:25 a.m., July 14, 1994.
The Issue Whether Proposed Florida Administrative Code Rules 65G- 4.0021, 65G-4.0022, 65G-4.0023, 65G-4.0024, and 65G-4.0025 are invalid exercises of delegated legislative authority.
Findings Of Fact The Agency for Health Care Administration (AHCA) is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, called the "Medicaid program." See § 409.902, Fla. Stat. (2008). The Respondent, Agency for Persons with Disabilities (APD), is the responsible agency, as defined in Chapter 393, Florida Statutes (2008), for the operation of the Medicaid Waiver program for developmentally disabled persons. The individual Petitioners are clients in the Medicaid Waiver program. They are eligible for services because they have a developmental disability, as defined in Subsection 393.063(9), Florida Statutes, which is as follows: “Developmental disability" means a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely. The other Petitioner, the Advocacy Center for Persons with Disabilities, Inc., is a not-for-profit group that represents persons with disabilities. Typically, a person who meets the statutory definition for eligibility has the assistance of a waiver support coordinator (WSC), trained by APD, whose role is described in the Agency for Health Care Administration's Developmental Disabilities Waiver Services Coverage and Limitations Handbook (the “Handbook”). The Handbook has been adopted, by reference, in Florida Administrative Code Rule 59G-13.080(12). The WSC assesses the needs of the person for medical, physical and functional services and assists the individual in selecting the services in development of a support plan. The support plan is individualized, based on the preferences, interests, talents, attributes and needs of the recipient. From the support plan, the WSC develops a proposed cost plan that reflects the level, intensity, duration, and types of services needed, and the cost of the services. The WSC submits the proposed cost plan for Prior Service Authorization review and approval, by one of the APD- contract companies, MAXIMUS and APS Healthcare. If approved, the eligible person with the documented "medical necessity" for services becomes a waiver client with an approved cost plan for one fiscal year. The WSC is supposed to conduct cost plan reviews at least once a year to determine if a change in circumstances necessitates a change in services and costs. Rulemaking Authority In 2007, the Florida Legislature amended Section 393.0661, Florida Statute (2008), related to home and community- based services, which are available pursuant to the Medicaid Waiver program, to provide, in part, as follows: § 393.0661. Home and community-based services delivery system; comprehensive redesign The Legislature finds that the home and community-based services delivery system for persons with developmental disabilities and the availability of appropriated funds are two of the critical elements in making services available. Therefore, it is the intent of the Legislature that the Agency for Persons with Disabilities shall develop and implement a comprehensive redesign of the system. The redesign of the home and community-based services system shall include, at a minimum, all actions necessary to achieve an appropriate rate structure, client choice within a specified service package, appropriate assessment strategies, an efficient billing process that contains reconciliation and monitoring components, a redefined role for support coordinators that avoids potential conflicts of interest, and ensures that family/client budgets are linked to levels of need. * * * (b) The agency, with the concurrence of the Agency for Health Care Administration, may contract for the determination of medical necessity and establishment of individual budgets. A provider of services rendered to persons with developmental disabilities pursuant to a federally approved waiver shall be reimbursed according to a rate methodology based upon an analysis of the expenditure history and prospective costs of providers participating in the waiver program, or under any other methodology developed by the Agency for Health Care Administration, in consultation with the Agency for Persons with Disabilities, and approved by the Federal Government in accordance with the waiver. The Agency for Health Care Administration, in consultation with the agency, shall seek federal approval and implement a four-tiered waiver system to serve clients with developmental disabilities in the developmental disabilities and family and supported living waivers. The agency shall assign all clients receiving services through the developmental disabilities waiver to a tier based on a valid assessment instrument, client characteristics, and other appropriate assessment methods. * * * The Agency for Health Care Administration shall also seek federal approval to provide a consumer-directed option for persons with developmental disabilities which corresponds to the funding levels in each of the waiver tiers. The agency shall implement the four-tiered waiver system beginning with tiers one, three, and four and followed by tier two. The agency and the Agency for Health Care Administration may adopt any rules necessary to administer this subsection. The agency shall seek federal waivers and amend contracts as necessary to make changes to services defined in federal waiver programs administered by the agency as follows: Supported living coaching services shall not exceed 20 hours per month for persons who also receive in-home support services. Limited support coordination services shall be the only type of support coordination service provided to persons under the age of 18 who live in the family home. Personal care assistance services shall be limited to no more than 180 hours per calendar month and shall not include rate modifiers. Additional hours may be authorized for persons who have intensive physical, medical, or adaptive needs if such hours are essential for avoiding institutionalization. Residential habilitation services shall be limited to 8 hours per day. Additional hours may be authorized for persons who have intensive medical or adaptive needs and if such hours are essential for avoiding institutionalization, or for persons who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harming themselves or others. This restriction shall be in effect until the four-tiered waiver system is fully implemented. Chore services, nonresidential support services, and homemaker services shall be eliminated. The agency shall expand the definition of in-home support services to enable the provider of the service to include activities previously provided in these eliminated services. Massage therapy and psychological assessment services shall be eliminated. The agency shall conduct supplemental cost plan reviews to verify the medical necessity of authorized services for plans that have increased by more than 8 percent during either of the 2 preceding fiscal years. The agency shall implement a consolidated residential habilitation rate structure to increase savings to the state through a more cost-effective payment method and establish uniform rates for intensive behavioral residential habilitation services. Pending federal approval, the agency is authorized to extend current support plans for clients receiving services under Medicaid waivers for 1 year beginning July 1, 2007, or from the date approved, whichever is later. Clients who have a substantial change in circumstances which threatens their health and safety may be reassessed during this year in order to determine the necessity for a change in their support plan. Nothing in this section or in any administrative rule shall be construed to prevent or limit the Agency for Health Care Administration, in consultation with the Agency for Persons with Disabilities, from adjusting fees, reimbursement rates, lengths of stay, number of visits, or number of services, or from limiting enrollment, or making any other adjustment necessary to comply with the availability of moneys and any limitations or directions provided for in the General Appropriations Act. The Agency for Persons with Disabilities shall submit quarterly status reports to the Executive Office of the Governor, the chair of the Senate Ways and Means Committee or its successor, and the chair of the House Fiscal Council or its successor regarding the financial status of home and community-based services, including the number of enrolled individuals who are receiving services through one or more programs; the number of individuals who have requested services who are not enrolled but who are receiving services through one or more programs, with a description indicating the programs from which the individual is receiving services; the number of individuals who have refused an offer of services but who choose to remain on the list of individuals waiting for services; the number of individuals who have requested services but who are receiving no services; a frequency distribution indicating the length of time individuals have been waiting for services; and information concerning the actual and projected costs compared to the amount of the appropriation available to the program and any projected surpluses or deficits. If at any time an analysis by the agency, in consultation with the Agency for Health Care Administration, indicates that the cost of services is expected to exceed the amount appropriated, the agency shall submit a plan in accordance with subsection to the Executive Office of the Governor, the chair of the Senate Ways and Means Committee or its successor, and the chair of the House Fiscal Council or its successor to remain within the amount appropriated. The agency shall work with the Agency for Health Care Administration to implement the plan so as to remain within the appropriation. [Emphasis added.] The statute also continues to provide, as before, that no monetary limit is set for the total budget in a cost plan year for the Mental Retardation and Developmental Disabilities Waiver, also known as the "DD Waiver" or "big waiver," now known as Tier One. It establishes limits of $55,000, and $35,000 a year for newly-created Tier Two and Tier Three Waivers, respectively. Tier Four, also previously known as the Family and Supported Living Waiver, continues to have an annual cost budget limit of $14,792. Federal Approval AHCA, in consultation with APD, obtained federal approval to implement the four-tiered waiver system to serve clients with developmental disabilities. The Federal Center for Medicaid and Medicare Services (CMS) approved the creation of the Mental Retardation and Developmental Disabilities Waiver, which is now Tier One, in 2003. CMS approved the creation of the Family and Supported Living Waiver, which is now comparable to Tier Four, with a limit on spending of $14,792.00, in 2005. In February 2008, CMS approved Florida's request to implement Tiers Two and Three with spending limits of $55,000 and $35,000, respectively. Rulemaking Requirements On December 7, 2007, APD published a Notice of Rule Development and Workshop, in Volume 33, Number 49, Florida Administrative Weekly. On March 28, 2008, APD published the Notice of Proposed Rule and Public Hearing, in Volume 34, Number 13, Florida Administrative Weekly. On May 6, 2008, Joint Administrative Procedures Committee issued the certification of the tier rules, which are challenged in this proceeding. During the rulemaking process, APD invited stakeholders, including family members and organizations representing various different interests in the developmental disability community, to participate in the development of the tier rules. APD and AHCA conducted a Rule Development Workshop on December 21, 2007, and a public hearing on April 24, 2008. Representatives of waiver recipients and family members, WSCs and other service providers, and associations and interest groups for the developmental disabilities waiver community attended the public hearing. At both the rule workshop and the public hearing, APD received oral and written comments. Most speakers opposed the proposed tier rules. A major concern was the potential lack of a mechanism for "migration" or "transition" among tiers as a client's condition and circumstances change. As a result, the following Subsection was added to Proposed Rule 65G-4.0021: (5) The Agency will review a client’s tier eligibility when a client has a significant change in circumstance or condition that impacts on the client’s health, safety, or welfare or when a change in the client’s plan of care is required to avoid institutionalization. The information identifying and documenting a significant change in circumstance or condition that necessitates additional or different services must be submitted by the client’s Waiver Support Coordinator to the appropriate Agency Area office for determination. APD presented evidence that the provision for review of tier eligibility based on a "significant change in circumstance or condition" is less onerous than the current requirement for a client to be in "crisis." It also noted that WSCs are well-trained to prepare assessments and to provide appropriate documentation of significant changes in circumstances and conditions. Petitioners' expert testified that the phrase "when a change in the client’s plan of care is required to avoid institutionalization” is unnecessarily restrictive, in that it fails to consider the need to maintain a person's quality of life. That interpretation ignores the preceding phrase that requires consideration of changes "that impact on the client’s health, safety, or welfare." Currently, clients who are receiving waiver services have received notice that the tier system was in the process of being implemented and that APD would be providing additional information in the future. As of this time, APD has not made any tier assignments, although preliminary analyses have been conducted by APD and by some WSCs. The evidence demonstrated that APD followed proper rulemaking procedures, including taking into consideration the comments suggesting a procedure for transitions between tiers when warranted. Tier Assignment Assessment Instrument In addition to the requirement in Subsection 393.0661(3), Florida Statutes (2008), for a valid assessment instrument for the assignment of clients to a tier, Subsection 393.0661(1)(a), Florida Statutes, more specifically provides that: The agency shall use an assessment instrument that is reliable and valid. The agency may contract with an external vendor or may use support coordinators to complete client assessments if it develops sufficient safeguards and training to ensure ongoing inter-rater reliability. [Emphasis added]. Petitioners noted that the proposed rules lack a provision requiring or designating any assessment instrument. Petitioners also presented evidence that APD is using the Questionnaire for Situational Information (QSI) as an assessment instrument, and asserted that it has not been tested for reliability and validity. APD is planning to test the QSI and instructed WSCs to begin using it in January 2008, but APD plans to use the Individual Cost Guidelines (ICGs) that were administered through December 2007, not the QSI, as the assessment instrument for use in the tier assignment process. The ICG has been used since 2003, and is administered every three years. WSCs and APD staff were trained, and WSCs certified, after passing examinations, to administer the ICG. The ICG is the approved assessment in the Handbook. The "validity" of the ICG, meaning its usefulness as a tool for its intended purpose and, in this case, the planning of service utilization and costs, was established in a study by Mercer Human Resource Consulting in March 2004. The "reliability" of the ICG, the ability of different raters over time to use it to achieve an acceptably similar range of results was tested by MGT of America. The MGT report of January 19, 2005, indicated an acceptable, fairly consistent inter-rater reliability, after face-to-face interviews and a sample size of 213 or 219, although an ideal sample size would have been 250 or 260 subjects. APD staff and WSCs were trained and certified on the ICG again, when it was revised as to cost estimates, although the questions and scoring system were not changed, in 2006. Petitioners' expert testified that an assessment instrument, to be valid and reliable for support planning, should be administered every three years, as the ICG has been, and that the ICG is reliable and valid to assess support needs. Petitioners' expert expressed the opinion that the ICG has not been validated for the purpose of making tier assignments. By contrast, APD's expert reasonably testified that, while not appropriate as the sole instrument to be used to assign clients to tiers, the ICG is useful in the process of assessing service needs and costs. Therefore, the ICG is useful to the extent that costs are a factor and, in fact, it is reasonable to conclude that the annual budgeted cost for services is one of the most objective factors in the tier assignment process. Petitioners' argument is essentially that the failure to designate an assessment instrument in the rule renders the rule invalid. That argument ignores the inclusion of the Handbook which does designate the ICG and which is incorporated by reference in Rule 59G-13, the rule that is included in the tier assignment criteria of Florida Administrative Code Proposed Rule 65G-4.0021(1). See Findings of Fact No. 25. Tier Assignment Process Subsections 393.0661(1) and (3), Florida Statutes (2008), require that appropriate assessment strategies and methods be used in the redesign of the waiver system, and for the assignment of clients to tiers. Petitioners' expert testified that the tier assignment rules create a process that is vague, and that creates arbitrary preconditions, including residency, that take priority over the needs of clients. Proposed Rule 65G-4.0021(1) states that: The Agency for Persons with Disabilities will assign clients of home and community-based waiver services for persons with developmental disabilities to one of the four Tier Waivers created by Section 393.0661, Florida Statutes (2007). The agency will determine the Tier Waiver for which the client is eligible and assign the client to that waiver based on the developmental disabilities waiver criteria and limitations provided in Chapters 393 and 409, F.S., Rule Chapter 59G-13, F.A.C., and this rule Chapter and the Agency’s evaluation of the following information: The client’s level of need in functional, medical, and behavioral areas, as determined through Agency evaluation of client characteristics, the Agency approved assessment process, and support planning information; The client’s service needs as determined through the Agency’s prior service authorization process to be medically necessary; The client’s age and the current living setting; and The availability of supports and services from other sources, including natural and community supports. The reference in the Rule to Florida Administrative Code Chapter 59G-13, includes the Handbook that sets forth specific conditions that, with a determination of medical necessity, require specific services. Client characteristics are assessed using APD worksheets reporting on clients' physical abilities, handicapping conditions, and major life activities. Support plan worksheets include data on strengths, communication style, type of residence, goals, capabilities, adaptive or assistive equipment, and medications or, in other words, a rather comprehensive assessment of conditions, circumstances, and needs. In addition, the need for Specialized Services may also be documents by assessments by various health care professional, such as doctor’s prescriptions, physical therapy and mental health behavioral assessments. Strictly medical services are, however, in general, provided under the Medicaid state plan not the waiver plan. The criteria in statutes and the Handbook when read, in pari materia, with Proposed Rule 65G-4.0021(1) provide comprehensive, appropriate strategies and methods for implementing a tier assignment process that is not vague or arbitrary. Repeated statutory references to residential placements, residential facilities, and living situations single out these factors as reasonable and important in making tier assignments and, therefore, appropriate for inclusion in the rules, unless a specific tier assignment rule contravenes the statute that it purports to implement. Specific Tier Assignments Section 393.0661 and the rules implementing that comprehensive redesign of the Waiver program expands the levels of services from two to four tiers. The individual Petitioners expressed concern that the application of the proposed tier rules to them will arbitrarily cause a reduction in their services. Those concerns are considered in understanding the challenge to the rules, but the individual Petitioners are not entitled to relief in this challenge to the facial validity of the rules as they would be in a proceeding brought under Sections 120.569 and 120.57, Florida Statutes. Proposed Rule 65G-4.0021(2) provides for a continuation of the existing DD Waiver services for Tiers One, Two, and Three, but not for Tier Four, as discussed in Findings of Fact 53 and 54. The services described by the Developmental Disabilities Waiver Services Coverage and Limitations Handbook, July 2007 (hereinafter referred to as the “DD Handbook”), adopted by Rule 59G-13.080, F.A.C. and incorporated herein by reference, are available to clients of the Developmental Disabilities Waiver (hereinafter called “the Tier One Waiver”), the Developmental Disabilities Tier Two Waiver (hereinafter called “the Tier Two Waiver”), and Developmental Disabilities Tier Three Waiver (hereinafter called “the Tier Three Waiver”). APD does not take into consideration all available services in making the tier assignments. For example, adult dental services, emergency response needs, adult day training, and supported employment are not considered. APD explained that need for these types of services transcends tiers and are still available to clients, although recipients admittedly will be requires to prioritize their needs within the monetary caps, established by statute. Subsection 393.0661(3)(a) provides: Tier one shall be limited to clients who have service needs that cannot be met in tier two, three, or four for intensive medical or adaptive needs and that are essential for avoiding institutionalization, or who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harm to themselves or others. Proposed Rule 65G-4.0022, intended to implement tier one, provides: 2) Clients living in a licensed residential facility receiving any of the following services shall be assigned to the Tier One Waiver: Intensive behavioral residential habilitation services; Behavior focus residential habilitation services at the moderate or above level of support; or Standard residential habilitation at the extensive 1, or higher, level of support; or Special medical home care. Nursing service needs that can be met through the Tier Two, Tier Three, or Tier Four Waivers are not “services” or “service needs” that support assignment to the Tier One Waiver. By describing both the residential settings and the level of services required, Proposed Rule 65G-4.0022 describes in logical and reasonable detail the clients, who based on these circumstances, have the most intense needs for Tier One Waiver services. Although Proposed Rule 65G-4.0022 does not define the criteria for intense medical and adaptive needs, by using the Handbook, that is understood to mean an adult who needs personal care assistance with feeding, toileting, and other activities of daily living. Petitioner Geraud Moreland Petitioner Geraud Moreland II is a 34-year-old man who lives with his parents who both work full-time. He receives waiver services because he had a stroke when he was 18 months old and now suffers from severe seizures. His ICG has not been updated since September 2006. In the interim, he has had significant changes in his medical condition. His epilepsy has caused him to lose skills, including the ability to sign words. Petitioner Moreland currently receives personal care assistance for most activities of daily living, supported employment, respite care, companion care, and support coordination services that have been determined to be medically necessary under the DD Waiver. These services total more than $70,000 per year. Petitioner Moreland's supported employment services enable him to work cleaning a school for four hours a day, two days a week. He owns a vending machine business. He cleans his 22 machines, takes out the money, and refills the machines with the assistance of his caregiver. There are no available alternatives or natural supports available to substitute for Petitioner Moreland's personal care assistance and supported employment services, and those services are expected to be unavailable if as his parents have been told, he is assigned permanently to Tier Three, as he is already preliminarily assigned. Despite his change in circumstances since 2006, Petitioner Moreland’s family and WSC have not requested a review of his ICG. If, in fact, Petitioner Moreland is assigned to Tier Three, as his parents expect, APD takes the position that he can decide to use the money up to the cap for his biggest outcome goal, supported employment, even though it is not used as a tier assignment criterion. Obviously, other services that he receives would be reduced, but the monetary cap is set by statute not rule. Petitioner Collin Cone Petitioner Collin Cone is a 14-year-old boy, who is receiving services under the Consumer Directed Care Plus (CDC+) program. He lives with his mother and she provides his personal care assistance that is included in his total cost plan of approximately $60,000 a year. His last ICG was administered in 2006. Since that time he has been diagnosed with irritable bowel syndrome, scoliosis, and worsening eyesight and leg functions. Based on his WSC's projections, Petitioner Collin's mother believes that, because he lives at home, he will be assigned to Tier Four, which has a cap of $14,792. That amount would not be sufficient to allow her to stay home to provide the personal care assistance that he needs, currently compensated at the rate of $18.00 an hour. Although, APD has indicated that Petitioner Collin's personal care assistance could be transferred to the Medicaid State Plan program, the family has received no information regarding the transfer, and understands that the State Plan prohibits the primary care giver from being the personal care assistance provider. APD’s witness indicated that the CDC+ program for personal care assistance by the primary care giver will continue in the Waiver program. The cost is being limited, however, as of July 1, 2008, to $15.00 an hour. The Medicaid State Plan is expanding to include personal care assistance, but that would require the use of a State plan provider. Petitioner Will Baker Petitioner Will Baker is a 77-year-old man, who receives adult dental, support coordination, one-on-one adult training, behavior analysis, incontinence supplies, and residential habilitation services in the DD Waiver program. He has lived in the same group home for at least 10 years and has no family. Petitioner Baker's total cost plan for services is approximately $69,800 a year. His support coordinator expressed the opinion that Petitioner Baker could be placed in Tiers One, Two, or Three, but that he would be a candidate for institutionalization if he is not in Tier One. An APD witness testified that a client assessed with the need for a behavior-focused program in a residential habilitation setting will meet the criteria for intense needs in Tier One. Until the assignments are made, any challenge to Petitioner Baker's tier and services is premature and inappropriate in this rule challenge case. Subsection 393.0661(3)(b) describes Tier Two: Tier two shall be limited to clients whose service needs include a licensed residential facility and greater than 5 hours per day in residential habilitation services or clients in supported living who receive greater than 6 hours a day of in- home support services. Total annual expenditures under tier two may not exceed $55,000 per client each year. Proposed Rule 65G-4.0023 describes the Tier Two Waiver as follows: The total budget in a cost plan year for each Tier Two Waiver client shall not exceed $55,000. The Tier Two Waiver is limited to clients who meet the following criteria: (1) The client’s service needs include placement in a licensed residential facility and authorization for greater than five hours per day of residential habilitation services; or (2) The client is supported living and is authorized to receive more than six hours a day of in-home support services. Proposed Rule 65G-4.0023 matches the statutory description of Tier Two and does not contravene, enlarge or modify the statue. It is reasonable to include a description of Tier Two to make the tier rules complete, even though the statute has the requisite detail for implementation. Subsection 393.0661(3)(c) creates Tier Three as follows: Tier three shall include, but is not limited to, clients requiring residential placements, clients in independent or supported living situations, and clients who live in their family home. Total annual expenditures under tier three may not exceed $35,000 per client each year. The proposed rule to implement the Tier Three statutory provision is: 65G-4.0024 Tier Three Waiver. (1) The total budget in a cost plan year for each Tier Three Waiver client shall not exceed $35,000. A client must meet at least one of the following criteria for assignment to the Tier Three Waiver: (a) The client resides in a licensed residential facility and is not eligible for the Tier One Waiver or the Tier Two Waiver; or (b) The client is 21 or older, resides in their own home and receives Live-in In-Home Support Services and is not eligible for the Tier One Waiver or the Tier Two Waiver; or (c) The client is 21 or older and is authorized to receive Personal Care Assistance services at the moderate level of support as defined in the DD Handbook. (d) The client is 21 or older and is authorized to receive Skilled or Private Duty Nursing Services and is not eligible for the Tier One Waiver or the Tier Two Waiver; or (e) The client is 22 or older and is authorized to receive services of a behavior analyst and/or a behavior assistant. (f) The client is under the age of 22 and authorized to receive the combined services of a behavior analyst and/or a behavior assistant for more than 60 hours per month and is not eligible for the Tier One Waiver or the Tier Two Waiver. (g) The client is 21 or older and is authorized to receive at least one of the following services: (i) Occupational Therapy; or (ii) Physical Therapy; or (iii) Speech Therapy; or (iv) Respiratory Therapy. Tier Three is intended for people who do not qualify for Tier One and Two services, but who live in a residential facility. APD deemed that essential because residential habilitation is not permitted in Tier Four. Subsections (a) and (f) may also include children, and (f) may include children who live in the family home. APD justified the age limits in Tier Three based on the alternative availability of services through the Medicaid State Plan for persons under the age of 21, from the Department of Education for persons under the age of 22 who attend public schools, as well as some vocational rehabilitation services. The exceptions in Subsections (a) and (f) are for any client in a residential facility or one in need of behavioral interventions and assistance for more than 60 hours a month but not at the intensity levels for Tiers One and Two. Section 393.0661(3)(d), Florida Statutes, is a restatement of the existing, most limited level of waiver services. (d) Tier four is the family and supported living waiver. Tier four shall include, but is not limited to, clients in independent or supported living situations and client who live in their family home. An increase to the number of services available to clients in this tier shall not take effect prior to July 1, 2008. Total annual expenditures under tier four may not exceed $14,792 per client each year. With regard to Tier Four, Proposed Rules 65G-4.0021 and 65G-4.0025 provide: The following services described in the DD Handbook are available to clients assigned to the Tier Four Waiver (presently known as The Family and Supported Living Waiver): Adult Day Training; (b) Behavior Analysis; (c) Behavior Assistance; (d) Consumable Medical Supplies; (e) Durable Medical Equipment; (f) Environmental Accessibility Adaptations; In-Home Support Service; Personal Emergency Response System; (i) Respite Care; (j) Support Coordination; (k) Supported Employment; (l) Supported Living Coaching; and (m) Transportation. 65G-4.0025 Tier Four Waiver. The total budget in a cost plan year for each Tier Four Waiver client shall not exceed $14,792 per year. Clients who are not eligible for assignment to the Tier One Waiver, the Tier Two Waiver, or the Tier Three Waiver shall be assigned to the Tier Four Waiver. The criteria for the Tier 4 Waiver includes, but is not limited to: Clients who are currently assigned to receive services through the Family and Supported Living Waiver unless there is a significant change in condition or circumstance as described in subsection 65G- 4.0021(4), F.A.C.; or Clients who are under the age of 22 and residing in their own home or the family home, or Clients who are dependent children who reside in residential facilities licensed by the Department of Children and Families under Section 409.175 F.S.; Tier Four has been in existence in Florida since the State received federal approval in 2005. Petitioners question the logic of placing most children in Tier Four, although, as APD explained with regard to Tiers Three and Four, children are eligible for comparable services through other programs. Petitioners asserted that DD Waiver services are not available in Tier Four in contravention of the last sentence in Subsection 393.0661(3), which states: The Agency for Health Care Administration, in consultation with the agency, shall seek federal approval and implement a four-tiered waiver system to serve clients with developmental disabilities in the developmental disabilities and family and supported living waivers. The agency shall assign all clients receiving services through the developmental disabilities waiver to a tier based on a valid assessment instrument, client characteristics, and other appropriate assessment methods. All services covered under the current developmental disabilities waiver shall be available to all clients in all tiers where appropriate, except as otherwise provided in this subsection or in the General Appropriations Act. (Emphasis added.) That Subsection also directs that the Family and Supported Living Waiver clients be included in the tier system, and the services listed in the rule are the same as those that have always been available in the Family and Supported Living Waiver program.
Findings Of Fact UniPsych is a Florida corporation that provides managed mental health and substance abuse services to Florida residents. The company was founded by Dr. Leo Bradman, a recognized authority in managed mental health care. UniPsych currently provides mental health and substance abuse services and has been providing mental health services, on a managed care basis to the Lake County School District and its employees for the last five (5) years. In July 1995, the Board issued Request For Proposals No. 883 (RFP). The RFP sought proposals for a managed behavioral health program that includes an employee assistance program and a mental health/substance abuse program for the School District employees, their spouses, and their children. The RFP at a minimum requires that each member would be entitled to three visits a year with a counselor. The first visit would be at no charge to the member and a $10.00 charge to the member for visits two and three. The RFP also states in pertinent part: Rights are reserved by the School Board of Lake County to reject any and all proposals and to waive all technicalities. * * * THE SCHOOL BOARD RESERVES THE RIGHT TO ACCEPT OR REJECT PROPOSALS IN WHOLE OR IN PART; AND TO AWARD A CONTRACT IN THE MANNER IN WHICH THE BOARD DETERMINES TO ITS BEST INTEREST. Award of this proposal is intended to be made by the School Board at its regular meeting on August 8, 1995. Conformity to specifications, price, quality of network, quality of program, response to worksheet and financial stability will be determining factors in the awarding of the proposal. All proposals must include the following: Completed Managed Behavioral Health Program Worksheet signed by an authorized representative. Completed Statement on Public Entity Crimes. A copy of your company's Florida Private Review Act Certification. Sample EAP and Managed MH/SA communi- cations to employees. A sample contract stating the provisions that would apply if your company is selected. Any additional information which your company deems pertinent to the proposal. The RFP does not define the term financial stability. The RFP does state a preferred method of calculating price. The preferred method of calculating price is the per employee contracts per month model. Total employee contracts is 2855 employees. Six (6) vendors submitted proposals prior to the submission deadline for RFP 883, including the prior contract holder UniPsych. The Board's plan for evaluating the six proposals was to submit them to the Board's insurance committee and the Board's expert consultant, John D. Robinson. The Board elected to have Mr. Robinson screen the submitted proposals for responsiveness to the RFP. Of the six (6) proposals submitted to the School Board, only the proposals of UniPsych, FPM, and Mathar Behavioral Health Systems, Inc. were deemed to satisfy the criteria of the RFP. These three proposals were sent to the Board's insurance committee so that the committee members could review and interview the three remaining proposers. The committee members as well as the Board had each proposers' proposal as well as a spreadsheet prepared by Mr. Robinson during his screening process. However, the evidence was clear that the committee relied on the price representations and guarantees contained in the spreadsheet. The Committee voted 9-0-1 to recommend the award to FPM. The Petitioner received no votes. The third finalist received one vote. Around August 10, 1995, UniPsych received written notice that the School District's ten-member district-wide health insurance committee decided to recommend that the School Board award its contract to FPM. As indicated earlier in screening the proposals, Mr. Robinson prepared a spreadsheet containing comparative data. The spreadsheet was not meant to be a complete listing of all the items in a company's proposal. He obtained the information contained in the spreadsheet mostly from the proposers' proposals. However, in at least two instances relevant to this case. Mr. Robinson contacted certain proposers over its proposal. Mr. Robinson felt he could seek corrections or clarifications from FPM, and other proposers because "[t]his is a proposal, not a bid. Proposals have the ability to be questioned and clarified " One such call was made to FPM. The call to FPM was made regarding at least two portions of FPM's proposal. FPM stated in Part 3 of its proposal that 14 average employee assistance program (EAP) visits per 1000 members were handled by FPM; and stated in Part 7 of its proposal that it would offer the benefit design outlined in the Board's specifications at $5.00 per employee contract per month. The $5.00 rate would be guaranteed for "two years without significant Consumer Price Index (CPI) increases." FPM was permitted to change the information contained in Part 3 of its proposal to 80-85 average employee assistance program visits per 1000 members because the original number was an error. The evidence did not demonstrate that this change was significant or material. More importantly however, FPM was allowed to change it price guarantee to three years without the CPI provision. These changes contradicted the plain language of FPM's proposal. Mr. Robinson inserted the newly-provided information in his spreadsheet and reported these changes to FPM's proposal to the committee. The change made to FPM's price guarantee was not a mere clarification but a significant change in a material bid term. The evidence was clear that the information in the spreadsheet was utilized and relied on by the Board and its insurance committee. The spreadsheet also contained information on each proposer's price. However, the spreadsheet was unduly detrimental to UniPsych because it overstated UniPsych's price. Health benefit contracts are typically priced under one of two methods: per employee per month (PEPM) or per member per month (PMPM or additive method). Members include the employee as well as any non-employee persons such as children of the employee covered under a health plan. The RFP stated a preference for pricing on a PEPM basis. UniPsych proposed to charge $4.01 on a PEPM basis. In determining UniPsych's PEPM average, the individual employee price was not added onto the price charged per employee and child(ren), per employee and spouse, or per employee and family. However, the spreadsheet erroneously stated all prices in the spreadsheet on a PMPM basis and reflected that UniPsych proposed to charge $4.80 PMPM instead of $4.01 PEPM. Moreover, the price was incorrectly based on an interpretation of documents relating to UniPsych's pricing scheme under its prior contract with the School Board. The erroneous interpretation served to inflate the spreadsheets price calculation for UniPsych. FPM proposed to charge $5.00 PEPM. Mr. Robinson recognized that if UniPsych's price was $4.01 PEPM, it would be substantially different from FPM's price, and could be sufficient to justify an award of the contract to UniPsych over FPM. Given the price guarantee change to FPM's proposal and this error in calculating UniPsych's price, these two factors warrant the rejection of all the bids in this case. As indicated earlier, the financial stability of a proposer was one of the criteria for review of this RFP. Neither the committee nor the RFP members required that any proposer submit financial information with its proposal or in its presentation to the committee. The only information supplied was general company information showing business activity, clients served and providers under contract. The committee members generally only asked the proposers if such information was available and if the proposer was financially stable. At the hearing, the evidence showed that FPM is the wholly-owned subsidiary of Ramsay Managed Care, Inc. (Ramsay). Ramsay essentially has two operating divisions: a health maintenance organization (HMO) division and a mental health and substance abuse division. FPM is Ramsay's mental health and substance abuse operating division. Ramsay's 10Q filing for the quarter ending March 31, 1995, reported that Ramsay had $17,508,893 in assets, $13,236,246 in liabilities, shareholder's net worth of $4,272,647, and $87,802 in losses that quarter. Ramsay has current assets of $2,957,912 and current liabilities of $4,362,714. These two figures give Ramsay a current ratio of 1:1.47. Generally a 1:1 or better ratio is deserved for financially stable companies. However, the ratio by itself does not show financial instability. It is simply a red flag worthy of more scrutiny. Ramsay's largest asset is "goodwill" totaling $9,959,745. Ramsay's 10Q explains that it booked most of this goodwill to account for its acquisition of FPM and two other mental health companies at prices exceeding the book values of those companies. Again the amount of goodwill does not demonstrate financial instability of a company. The 10Q also reflects that FPM proposes to obtain working capital via a line of credit that is collateralized by security interests in FPM's accounts receivable and its stock. The significance of these security interests is magnified by Ramsay's debt service obligations, which (as of March 31, 1995) would require it to pay out $2,211,100 by June 30, 1997, and $2,407,600 by June 30, 1998. Again these figures do not demonstrate financial instability of a company. To confirm its financial stability, UniPsych offered the Committee audited financial statements that were being prepared on a statutory accounting basis. The statements were never requested by the Committee and the Committee never considered financial statements for any of the proposals. However in this instance, the committee did consider the financial stability of all the proposers to its satisfaction. The evidence did not show that the committee's consideration was unreasonable or unfair to any proposer. In fact, the proposers were treated equally in the quality and quantity of financial information sought by the committee. The fact that more information or better information could have been sought is irrelevant since the committee and Board under the RFP specifications were free to determine the level of inquiry they deemed appropriate. If the specification as used by the Board was unclear or undefined to UniPsych, it should have challenged the specifications within the 72 hour period for such challenges under 120.53, Florida Statutes. Finally, the evidence was clear that UniPsych's proposal was a superior program to FPM's. In short UniPsych offered more benefits for less money. Indeed UniPsych's experiences during those five (5) years gave it first-hand knowledge of several ways it could improve and enhance the managed care program specified by the Board's RFP. FPM's proposal fails to offer any enhanced benefits. To enhance and improve the RFP's managed care program, UniPsych offered to provide two (2) additional benefits to the Board: (a) an out-of-network benefit; and (b) a chronic condition benefit. The out-of-network benefit gives potential patients complete choice of out-patient providers and increased choice of in-patient (hospital) providers, by allowing those potential patients to select a provider who is outside a designated network of providers. The chronic condition benefit addresses another restriction that is prevalent in most managed mental health care programs. As is the case with the RFP in issue, most managed mental health care programs routinely fail to require the plan provider to contract for coverage of chronic, recurrent or long-term mental health conditions (chronic conditions). This omission forces chronic condition patients to look to publicly funded community agencies for mental health care. Publicly funded facilities in Lake County have not produced patient satisfaction, partly because they are too few in number or they offer too few services. In addition to these two (2) major benefits, UniPsych's proposal also offered several other valuable benefit enhancements that improved upon the RFP's minimum requirements: 10 additional out-patient visits (above the 20 required by the RFP); and 5 free visits (i.e., no co-payment for members) under UniPsych's Employee Assistance Program, instead of the RFP's requirement of three visits, only the first of which is not subject to co-payment. The evidence did not demonstrate any reason with a basis in fact which would have caused the School Board to reject UniPsych's proposal in favor of FPM. The evidence only hinted at a general dissatisfaction with UniPsych. No basis for this dissatisfaction was shown. Since no basis was given for the Board's decision to reject a proposal which offers more benefits for less money the only conclusion is that the Board acted arbitrarily in awarding the contract to FPM. Therefore, all the proposals should be rejected and the process begun anew.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order rejecting all proposals. DONE and ENTERED this 29th day of January, 1996, at Tallahassee, Leon County, Florida. Officer Hearings 1550 Hearings DIANNE CLEAVINGER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-4827BID The facts contained in paragraphs 2, 3, 4, 5, 7, 8, 13, 14, 15, 17, 19, 20, 21 and 22, of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 1, 6, 10, 11, 16, 18, 24, 25 and 26 of the Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 12 and 23 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8(a) and (b) and 15 of Respondent's Proposed Findings of Fact* are adopted in substance is so far as material. The facts contained in paragraphs 11, 12, 13 and 14 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraph 8(c) of Respondent's Proposed Findings of Fact contained only legal argument. *Paragraphs 7 through 15 of Respondent's Proposed Findings of Fact were unnumbered. Therefore, the Hearing Officer supplied sequential numbers for these paragraphs for reference purposes. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Richard Langley, Esquire Post Office Box 120188 Clermont, Florida 34712-0188 Dr. Thomas E. Sanders, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Frank T. Brogan, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether the Agency for Health Care Administration (Agency or Petitioner) is entitled to recover alleged Medicaid overpayments, administrative fines, and investigative, legal, and expert witness costs from Kenneth O. Harden, d/b/a Ken Care, Inc. (Respondent).1/
Findings Of Fact The Agency is the state agency responsible for administering the Florida Medicaid Program (Medicaid). Medicaid is a federally-funded state-administered program that provides health care services to certain qualified individuals. Respondent, Kenneth O. Harden, is an individual who was enrolled as a provider in both the Florida Medicaid Developmental Disabilities Waiver Program (DD Program) and the Florida Medicaid Family Supported Living Waiver Program (FSL Program) at all material times. By enrolling in the Medicaid programs, Respondent agreed to fully comply with all state and federal laws, policies, procedures, and handbooks pertaining to the Medicaid program. Respondent submitted bills to Medicaid while he was enrolled and these bills were processed and paid to Respondent through the Florida Medicaid automated payment system. Claimed services for which Respondent submitted bills and was paid by Medicaid include in-home support, personal care assistance, self-care/home management training, companion support, supported living coaching, and respite care. The Agency is authorized to recover Medicaid overpayments, as appropriate. § 409.913(1)(e), Fla. Stat.4/ One method the agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's Bureau of Medicaid Program Integrity (MPI). Providers are identified as potential candidates for auditing by a combination of referrals from field offices, data processing offices, and the Agency?s fraud and abuse hotline, and a random audit process.5/ In 2011, Agency Administrator Robi Olmstead identified Respondent as a potential audit candidate through a field office referral. She opened two cases on Respondent, one for each provider number, and assigned the cases to Kristen Koelle, then Program Analyst, for full audits. Ms. Koelle completed the first steps of the audit process according to established protocols. She reviewed Respondent?s provider information and billing to determine what types of services he provided, what types of claims he had submitted, and how much had been paid by Medicaid. In consultation with Ms. Olmstead, Ms. Koelle selected January 1, 2008, through June 30, 2010, as the audit period. During that audit period, Respondent submitted 10,578 claims for 47 recipients alleged to have received services from Respondent through the DD Program, and 2,485 claims for 22 recipients alleged to have received services from Respondent through the FSL Program. When the Agency audits a Medicaid provider for possible overpayments it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. The audit method used by the Agency depends on the characteristics of the provider and of the claims. For example, where a provider serves thousands of Medicaid recipients during the audit period, but the number of claims for each recipient is small, then the Agency may use a single-stage cluster sampling methodology. Under this approach, a random sample of recipients is selected, and then all claims are examined for the recipient sample group. Alternatively, where there are so many claims per recipient that it would be impractical to review all claims for each recipient or all claims for a sample group of recipients, a two-stage cluster sample methodology may be used. Under this approach, a random sample of recipients is selected, followed by a random selection of sample claims for the recipients in the sample. As a general target, the Agency considers samples of between 5 and 15 claims per recipient to be reasonable sample sizes for the second stage of two-stage cluster sampling. However, if a given recipient has fewer than 15 claims, a smaller number of claims for that recipient will be selected. Because of the high volume of claims generated by Respondent during the audit period in this case, Ms. Koelle determined with her supervisor that a two-stage cluster sampling methodology would be used. In other words, it was not feasible to review all 13,063 claims generated by the recipients Respondent claimed to have served during the audit period. Using a computer program to carry out the random sampling, the Agency's two-stage cluster sampling software selected a random sample of Respondent?s recipients under both the DD Program and the FSL Program during the audit period. The software generated a list of 30 recipients in the DD Program and 21 recipients in the FSL Program. It then selected a random sample of between 5 and 15 claims for each recipient from Respondent?s paid-claims data in the Agency?s data warehouse for the audit period. For the DD Program, 344 sample claims for the 30 sample recipients were randomly selected from among the 10,578 claims submitted by Respondent during the audit period. For the FSL Program, 256 sample claims for the 21 sample recipients were randomly selected from among the 2,485 claims submitted by Respondent during the audit period. Thereafter, Ms. Koelle prepared a “demand letter” for each of the two programs, informing Respondent that audits had been initiated and requesting that Respondent provide Medicaid- related records to substantiate billing records of the identified recipients, as well as the employment/personnel records or files for any of Respondent?s staff who provided services to Medicaid recipients during the audit period. The letters gave Respondent the standard 21-day period to submit the requested records. Ms. Olmstead reviewed and signed the letters and they were mailed, along with a Provider Questionnaire and Certification of Completeness of Records, to Respondent on July 26, 2011. After requesting and receiving a series of extensions, Respondent complied with the demand letters on September 13, 2011. Respondent delivered to the Agency Medicaid-related records and employee documents, along with the Provider Questionnaires and signed Certificates of Completeness, which certified the accuracy, truthfulness, and completeness of the records submitted. Persons who provide Medicaid services must meet certain minimum qualifications and obtain certain trainings, otherwise the person is deemed “ineligible” or “disqualified” and Medicaid cannot reimburse for services provided by such persons. All persons who provide services directly to Medicaid recipients must also pass a Level 2 background screening. Training and screening requirements for staff of Medicaid providers during the audit period are set forth in the Medicaid Handbook and the DD Handbook. Upon receiving records sent by Respondent in response to the Agency's July 26, 2011, letters, Ms. Koelle first reviewed Respondent's staff files to determine whether each staff member met the necessary requirements to provide Medicaid or Medicaid waiver services. Respondent produced staff files for 30 of the 39 staff members who provided services to randomly-selected recipients during the audit period. Of those 30 files, 16 contained no documentation of core competency training, eight had incomplete or no background screening documentation, one had a disqualifying background screening, and 22 lacked documentation of required training in HIV/AIDS, Infection Control, Zero Tolerance, or CPR during the audit period. In addition, 13 staff files revealed the staff member did not meet the experience or educational requirements for the position held. Next, Ms. Koelle reviewed the documentation Respondent submitted for each recipient against the 344 DD Program claims and 256 FLS program claims in the random sample and recorded her findings on worksheets along with her descriptions of any deficiencies or noted violations of Medicaid law. Ms. Koelle noted numerous violations of Medicaid laws, including, but not limited to, the following: of the 344 DD Program sample claims, 127 were submitted without any supporting documentation, 67 were submitted without a service log to document services provided to the recipient, 36 were submitted for companion services provided to recipients who were ineligible because they either lived in a licensed residential setting or were receiving in-home support services, and 28 were submitted for unauthorized activities provided to recipients. The most common violation, services provided by unauthorized staff, appeared in 243 claims submitted by Respondent. Of the 256 FSL Program sample claims, 50 were submitted without supporting documentation, and 208 were submitted for services provided by unauthorized staff. Ms. Koelle also documented a handful of cases in which the unauthorized staff provided services outside the scope of the recipient?s service plan or overbilled for the services provided. Ms. Koelle found no claims that were allowed under the Medicaid law and, therefore, no claims that merited adjustment. Ms. Koelle completed her review and entered all amounts that she found to be disallowed into the computer program. The program added the figures to find the overpayment amount for the samples, and then extrapolated the overpayment to the entire universe of recipients, according to an established statistical methodology, which yielded the total overpayment amount. The computer program generated a printout showing the exact overpayment amount for each of the claims in the samples, and the total overpayment extended to the population. The figures on the printouts correspond to the figures on the worksheets. Utilizing this methodology, Ms. Koelle determined that Respondent had been overpaid by an amount of $568,250.01 for services in the DD Program, and $162,700.08 for services in the FSL Waiver program. Thereafter, she prepared the Preliminary Audit Reports (Preliminary Audits), describing the methodology applied to determine overpayment and the deficiencies that led to that determination. She attached to the Preliminary Audits the printouts, copies of her worksheets, and a copy of the spreadsheets with staff findings. A provision in the Preliminary Audits explains that Respondent may submit additional documentation to support the sample claims, although such submission may be deemed evidence of previous non- compliance. Ms. Olmstead reviewed, approved, and signed the Preliminary Audits, which were mailed with attachments to Respondent on October 18, 2011. After receiving the Preliminary Audits, Respondent again submitted records and a written response in an effort to further support the sample claims. However, Ms. Koelle determined that the records submitted were duplicates of records previously submitted by Respondent and did not support any change in her findings from the Preliminary Audits. In preparation of the Final Audit Reports, Ms. Koelle, in consultation with Ms. Olmstead, reviewed Respondent's documentation and found that there was insufficient documentation to support any of the sample claims in either the DD Program or the FSL Program. The deficiencies included incomplete or missing staff files, lack of documentation of services, no service authorization, no service logs or service logs that did not meet Medicaid handbook requirements, no monthly summary, and indications that ineligible staff members were providing services. In some instances, the service provided was ineligible as it did not further the recipient?s goals or was an unauthorized activity (e.g., watching a movie). Ms. Koelle recorded her findings in a separate spreadsheet for each audit. The spreadsheets, organized by recipient number, contain the following information for each of the claims in the samples: date of service (DOS), procedure code, procedure description, unit of service (UOS), cost per unit of service, amount paid to Respondent, claim determination (Allow, Adjust, or Deny), review determination, whether there was a document deficiency (Doc. Def.) or a billing amount issue, and the amount of the overpayment for the claim (O/P). Next, Ms. Koelle entered the disallowed amounts into the computer program, which added the amounts together, found the overpayment amount for the sample, and extended the overpayment to the entire population of 10,578 claims in the DD Program and 2,485 claims in the FSL Program. Ultimately, Ms. Koelle prepared the Final Audit Reports (Final Audits), which Ms. Olmstead signed and sent to Respondent on November 21, 2011. Because the records submitted by Respondent in response to the Preliminary Audits did not change the findings, the Final Audits reported the same overpayment amounts as the Preliminary Audits: $568,250.01 in the DD Program and $162,700.08 in the FSL Program. The Final Audits notified Respondent of the total overpayment calculations, described the types of non-compliance found in the sample claims, and explained the methodology employed to select the claims for review and extend the sample overpayment to arrive at the total overpayment amount. The Final Audits also advised Respondent that the Agency intended to recover fines in the amount of $113,650.00 for violations of requirements in the DD Program and $32,540.02 for violations of requirements of the FSL Program. Additionally, the Agency sought a total of $1,437.38 for costs of the two audits. Copies of the worksheets, as well as the two spreadsheets detailing the staff review findings, were attached. Respondent disputed the Final Audits and the Agency referred the matter to the Division. In preparation for the final hearing, the Agency consulted with Dr. Fred W. Huffer, a professor in the Department of Statistics at Florida State University with a B.S. in mathematics from the Massachusetts Institute of Technology and a Ph.D. in statistics from Stanford University. He has taught and researched statistics for more than 30 years at various institutions of higher learning. Dr. Huffer reviewed the Agency?s Preliminary and Final Audit findings and found one error in the analysis. In each audit, one randomly-selected recipient had submitted only one claim during the audit period. According to the Agency?s overpayment calculation methodology, the second-stage random sample may only be taken from those recipients with two or more claims during the audit period. Therefore, the Agency?s overpayment calculation included one incorrect variable. Dr. Huffer adjusted the formula and recalculated the overpayment with the correct variables for each audit. The result was a modest change to the final overpayment amounts -- a reduction of $8,368.36 for the DD Program and $818.44 for the FSL Program. The final adjusted total overpayments were $559,881.65 for the DD Program and $161,881.64 for the FSL Program. Respondent offered no witnesses and introduced no evidence at the final hearing. Instead of presenting contradictory expert testimony, Respondent attempted to undermine Dr. Huffer's opinions through cross-examination and argument. On cross-examination, Respondent attempted to challenge the reliability of the Agency?s sampling methodology and Dr. Huffer?s calculations. Respondent inquired as to the “authentication” of Dr. Huffer?s results and the requirements for determining when Dr. Huffer?s calculations were final, and insinuated that Dr. Huffer may have been biased because he has consulted with the Agency since 2004. Respondent was not effective in this regard. The methodology and description of two-stage cluster sampling were explained and confirmed at the final hearing by Dr. Huffer, who was accepted as an expert in statistical analysis and methodologies. In addition, the methodology comports with established law. See § 409.913, et seq., Fla. Stat.; Ag. for Health Care Admin v. Custom Mobility, Inc., 995 So. 2d 984 (Fla. 1st DCA 2008), cert. denied, 3 So. 3d 1246 (Fla. 2009). Dr. Huffer was familiar with the case at hand and with the science of random sampling of populations and the analysis of samples, including extension of results to the total population. Dr. Huffer analyzed the sampling method utilized by the Agency in this case with a program he personally developed for that purpose. Dr. Huffer repeated random simulation that recreated the audit circumstances many thousands of times, and found them to be accurate in this case. The software utilized by the Agency determined the amount of overpayments at a 95 percent confidence level. As explained by Dr. Huffer, if the entire procedure is repeated “many times, 95 percent of the time this value that they get to at the end would be less than the true amount” of the overpayment. In other words, the amount the Agency has asked Respondent to repay is most likely lower than the actual overpayment. In sum, Dr. Huffer credibly explained that the Agency?s cluster sampling method is appropriate and that it comports with the technical meaning of random sample and generally accepted statistical methods. Moreover, Dr. Huffer verified the adjusted overpayment amount through professionally accepted methodology. Dr. Huffer's opinions that the audits in this case utilized a correct and reasonable application of two-stage cluster sampling and that the sampling method used in this case was reasonable and comported with generally accepted statistical methods are accepted as credible and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Respondent, Kenneth O. Harden, d/b/a Ken Care, Inc., to: Repay the sum of $559,881.65 for claims in the Medicaid Development Disability Waiver Program that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; Repay the sum of $161,881.64 as recoupment of claims in the Medicaid Family and Supported Living Waiver Program which did not comply with the requirements of Medicaid laws, rules, and provider handbooks; Pay interest on the sums of $559,881.65 and $161,881.64 at the rate of 10 percent (10%) per annum from the date of the overpayment determination; Pay a fine of $6,000 per agency action (for a total of $12,000) for violations of the requirements of Medicaid laws, rules, and provider handbooks; and Pay allowable costs of $3,405.71, pursuant to section 509.913(23), Florida Statutes. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 20th day of March, 2013.
