The Issue The issues in this case are: (1) Whether Respondent violated sections 409.913, Florida Statutes, as alleged in the Sanction Letter dated January 18, 2012, by failing to have documentation evidencing the receipt of Core Assurances training in six employees' files; failing to have documentation evidencing the receipt of required HIPAA training in one employee file; and failing to have documentation evidencing the receipt of Zero Tolerance training in one employee file2/; and (2) if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for administering the Florida Medicaid Program pursuant to chapter 409. Petitioner's duties include operating a program to oversee the activities of Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913(1), Fla. Stat. To that end, Petitioner is authorized to conduct investigations of Medicaid providers to determine compliance with the Medicaid program. § 409.913(2), Fla. Stat. Respondent is an enrolled Medicaid provider providing home-based and community-based services to the developmentally disabled in a residential habilitation setting.3/ Respondent became an enrolled Medicaid provider in April 2004, and has been an enrolled Medicaid provider at all times pertinent to this proceeding. Medicaid Provider Agreement To become enrolled as a Medicaid provider for the developmentally disabled in Florida, a provider applies with Petitioner and the Agency for Persons with Disabilities ("APD"). If the provider is approved for enrollment in the Medicaid program, it enters into a Medicaid Provider Agreement ("MPA") with Petitioner. The MPA establishes the terms and conditions of the provider's participation in the Medicaid program. A key condition is that the provider agrees to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program, including the applicable Medicaid Handbooks. The Florida Medicaid Development Disabilities Waiver Services Coverage and Limitations Handbook, dated November 2010 ("DD Handbook"), and the Florida Medicaid Provider General Handbook, dated July 2008 ("General Handbook"), are applicable to this proceeding. Petitioner's Inspection of Respondent's Facility On September 28, 2011, Ms. Gina Selwitz, an Inspector Specialist with Petitioner's Bureau of Medicaid Program Integrity, conducted an unannounced site inspection at Respondent's facility to review Respondent's employee records and recipient files for compliance with applicable Medicaid program requirements. As part of the inspection, Ms. Selwitz reviewed the records of six employees for documentation that they had received required training in a range of areas, including Core Competency, Health Insurance Portability and Accountability Act ("HIPAA") compliance, and Zero Tolerance Training, as required under state and federal law and rules and the General Handbook and DD Handbook. Ms. Selwitz determined that required documentation showing Core Assurances training was missing from six of Respondent's employees' files. She also determined that required documentation showing HIPAA training was missing from the file of one of Respondent's employees. Additionally, she determined that required documentation showing Zero Tolerance training was missing from the file of one of Respondent's employees. Demand Letter Regarding Submittal of Missing Information While conducting the compliance inspection, Ms. Selwitz hand-delivered to Respondent a demand letter dated September 28, 2011. The demand letter stated in pertinent part: Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid program to the above provider number. The Medicaid-related records to substantiate billing for the recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. In addition, please complete the attached questionnaire and submit it along with the copies of the Medicaid- related records. Please submit the documentation and the attached Certificate of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. The referenced questionnaire and printout were not attached to the demand letter. Ms. Selwitz provided Respondent a handwritten list of items that she determined were missing from its files and that needed to be submitted in response to the demand letter. Respondent's Responses to Demand Letter and Sanction Letter On October 12, 2011, Respondent's representative, Mr. Orukotan, sent Ms. Selwitz electronic mail requesting that she send the editable Developmental Services Medicaid Provider Questionnaire form so Respondent could complete and submit it by October 14, 2011. After further electronic mail exchange, Ms. Selwitz provided the form to Mr. Orukotan on October 18, 2011. Respondent submitted the completed Questionnaire on November 3, 2011. In addition, Respondent submitted its Certificate of Completeness of Records and the other items that were requested in Ms. Selwitz's handwritten list provided with the demand letter. The handwritten list did not identify employee training documentation for Core Assurances, HIPAA, and Zero Tolerance as missing from Respondent's files; accordingly, Respondent did not provide that documentation as part of its November 3, 2011, submittal. Subsequently, Petitioner issued a Sanction Letter, dated January 18, 2012, which in part alleged that Respondent failed to have documentation in its files evidencing the receipt of employee training in Core Assurances, HIPAA, and Zero Tolerance. After receiving the Sanction Letter, Respondent submitted documentation of employee training in Core Assurances, HIPAA, and Zero Tolerance to demonstrate its compliance with the Medicaid program documentation requirements. Ms. Selwitz claimed that in addition to the handwritten list, she had given Respondent a typewritten list that identified other specific information, including the employee training documentation, that she determined missing from Respondent's files and needed to be provided pursuant to the demand letter. Respondent credibly testified that he never received this typewritten list of additional requested items. In support of Ms. Selwitz's testimony, Petitioner provided, as a supplemental exhibit, a typewritten form entitled "Residential Rehabilitation Provider." At the top of the form were three spaces to be filled in with the facility's name and the date and time of inspection; however, no information regarding Respondent's facility or its inspection was filled in the spaces, which were left blank. The form generally requested a range of items, including "[a]ll employee records (include Level II (FDLE and FBI) background check information)[4/]" but did not specifically request that Core Assurances, HIPAA, or Zero Tolerance employee training documentation be provided. The form further stated: "please provide the following records so that they may be reviewed on-site . . ."; This statement was followed by a list of items. However, Petitioner's facility inspection checklist and notes did not identify these items as missing from Respondent's files.5/ Rather than comprising an additional list of information that Ms. Selwitz prepared and provided to Respondent to specifically identify missing information to be submitted pursuant to the demand letter, the Residential Rehabilitation Provider list instead appears to be a general form list that Petitioner provides before or at the time of facility inspection. Under any circumstances, the form's lack of specificity regarding employee training documentation for Core Assurances, HIPAA, and Zero Tolerance would not have given Respondent notice that Petitioner had determined such documentation was missing from its files and needed to be provided as part of its response to the demand letter. The credible evidence establishes that Respondent was not given this typewritten form or otherwise notified that Petitioner had determined that employee training documentation for Core Assurances, HIPAA, and Zero Tolerance was missing from its files and needed to be provided pursuant to the demand letter. Respondent's Compliance With Record-Keeping Requirements Section 409.913, Petitioner's rules, the DD and General Handbooks, and federal law require that providers keep and produce as required, specified employee records, including records demonstrating training in a range of areas, including Core Assurances, HIPAA, and Zero Tolerance. Ms. Selwitz testified that if information determined to be missing from a provider's files during a compliance inspection is timely submitted pursuant to the demand letter, the provider is deemed to be in compliance with the applicable record-keeping and document production requirements in state and federal Medicaid law. Here, Petitioner did not notify Respondent that it had determined that certain employee training documentation was missing from its files. Thus, Respondent was not given the opportunity to establish compliance with the record-keeping and document production requirements by timely submitting this documentation in accordance with Petitioner's demand letter. Mr. Orukotan testified that Respondent kept the requested documentation in its employee files and would have provided it, had Petitioner notified Respondent that its inspection determined the documentation was missing. His testimony, which is bolstered by the fact that Respondent did timely submit all information pursuant to the handwritten list provided with the demand letter, is deemed credible and persuasive. As previously noted, Respondent submitted the employee training documentation upon being informed, pursuant to the Sanction Letter, that Petitioner had determined such documentation was missing from its files.6/ Under the present circumstances——where Petitioner failed to afford Respondent an opportunity to demonstrate compliance by timely responding to its demand letter, and where Respondent, when informed of the deficiencies, submitted the requested documentation——the undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent violated chapter 409, Petitioner's applicable rules, the DD Handbook, the General Handbook, and federal law, as charged in the January 18, 2012, Sanction Letter.7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order determining that Respondent did not violate federal and state Medicaid laws as charged in the January 18, 2012 Sanction Letter. DONE AND ENTERED this 2nd day of October, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2012.
The Issue Whether a provision contained in a Settlement Agreement of a federal lawsuit is the statement the Department of Children and Family Services (Respondent) relied upon to deny Petitioner, G.F., on behalf of minor child G.F. (Student G.F.), Medicaid waiver benefits and constitutes an invalid exercise of delegated legislative authority on the grounds that the statement in question was not promulgated as a rule; and Whether Petitioners can challenge a provision which is contained in the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, October 2003, in Florida Administrative Code Rule 59G-8.200(12), as an invalid exercise of delegated legislative authority when the agency which adopted the rule is not a party to this proceeding.
Findings Of Fact Medicaid is a cooperative federal/state program in which Florida participates in partnership with the national government. Medicaid provides medically necessary health care. In addition to shouldering administrative and regulatory responsibilities, Florida partially funds the Florida Medicaid Program, contributing about 42 percent of the money budgeted for the program's operation. Federal funds make up the balance. The Florida Retail Federation, Inc. v. Agency for Health Care Administration, Case No. 04-1828RX (DOAH July 19, 2004). Under the statutory scheme, states who participate in Medicaid are required to have a state plan. See 42 C.F.R. § 430.10. A participating state may also grant waivers to their state plan pursuant to Section 1915(c) of the Social Security Act. See 42 C.F.R. § 430.25. Each participating state must designate a single-state agency to administer or supervise administration of the state plan. The state plan must also specify whether the agency that determines eligibility is the Medicaid agency or the single-state agency for the financial assistance program under Title IV-A. See 42 C.F.R. § 431.10. The State of Florida has identified AHCA as the single-state agency to administer the plan and the previously identified Respondent to determine eligibility. § 409.902, Fla. Stat. (2002).2/ AHCA is required to enter an interagency agreement with Respondent and other agencies "to assure coordination and cooperation in serving special needs citizens." § 408.302(1), Fla. Stat. It is required that Respondent approve and have input with regard to AHCA's rules when the rules directly impact the mission of Respondent. Access to quality healthcare is "an important goal" for all citizens in Florida. § 408.301, Fla. Stat. Persons served by Respondent are citizens with special needs, and it is the policy of Florida that persons with special needs are adequately and appropriately served. The Florida Legislature recognizes that the Medicaid program is "an intricate part of the service delivery system for the special needs citizens" in Florida. AHCA is not a service provider and does not develop or direct programs for special needs citizens, such as Student G.F. § 408.301, Fla. Stat. In fact, it is Respondent that plays the vital role to assure that "the needs of special citizens are met." Under the Medicaid program in Florida, AHCA is the "single state agency authorized to make payments for medical assistance and related services." § 409.902, Fla. Stat. However, Respondent is responsible for "Medicaid eligibility determinations, including, but not limited to, policy, rules, . . . as well as the actual determination of eligibility." Specifically, Respondent administers the Developmental Disabilities Home and Community-Based Services Medicaid Waiver Program (HCBS Medicaid Waiver Program) in Florida, and under Section 409.919, Florida Statutes, is authorized and required to enact administrative rules, as necessary, to fulfill its obligation to comply with federal and state Medicaid law. Student G.F. is a developmentally disabled child with multiple developmental disabilities, including autism, mental retardation, and profound deafness. Student G.F.'s combination of disabilities have resulted in significant cognitive impairment, social withdrawal, violence, and self-injurious behavior. This has resulted in extreme challenges in communication and acquisition of skills related to daily living. In 2000, Student G.F. was placed at the NDA in Mount Dora, Lake County, Florida, as a day student under the treatment of Dr. Cohen, as part of Student G.F.'s Individual Education Plan under the Federal Individual with Disabilities Education Act. Approximately five months later, Dr. Cohen determined that residential placement of Student G.F. was medically necessary. Petitioner asserts that the NDA in Mount Dora, Florida, is the only facility that could provide residential habilitation services for Student G.F. and treat her complex array of disabilities. The NDA is a certified Medicaid waiver provider for Respondent in District 10. On or about August 1, 2001, Deloris Battle, an independent contractor who provides support coordination services to recipients under the HCBS Medicaid Waiver Program, prepared the Florida Status Tracking Survey for Student G.F. Respondent's surveyor concluded that Student G.F. was in a state of crisis and required residential placement for habilitation services. Petitioner School Board reached an understanding with Battle whereby the parties would share in the cost of services for Student G.F. at the NDA. Petitioner School Board would fund the cost of educational services, and Respondent would fund the cost of medical and residential habilitation services. Respondent's share of the cost of the services would be funded by the HCBS Medicaid Waiver Program. Student G.F. qualifies as developmentally disabled and is eligible for Medicaid services pursuant to Chapter 409, Florida Statutes. Student G.F. is also eligible for services under the HCBS Medicaid Waiver Program. Battle submitted a cost plan to Respondent's district's office that requested HCBS Medicaid Waiver Program funding for Student G.F.'s residential placement at NDA. Battle had no authority to commit Respondent to expend any Medicaid waiver funds without approval. The cost plan submitted by Battle was not sent to Tallahassee for approval. Approval was delayed at the district level until it was learned that Petitioner School Board agreed to pay for the residential placement of Student G.F. In May 2002, Petitioner School Board and G.F. were advised that Medicaid waiver funding for Student G.F.'s residential placement at the NDA was denied. Respondent offered no other options for service. Petitioner School Board agreed to fund Student G.F.'s residential placement at the NDA for a trial period. Such funding by Petitioner School Board has continued, because Petitioners believed that the NDA is the only facility that can treat Student G.F.'s array of disabilities. Petitioner School Board elected to fund the entire cost of Student G.F.'s residential placement under protest. The Dispute Petitioners brought this instant proceeding because they believe that Respondent's denial of Medicaid waiver funding for Student G.F.'s residential placement was (and continues to be) based on an agency statement by Respondent that was not adopted as a rule, in violation of Sections 120.54 and 120.56, Florida Statutes (2004). In 1998, Prado-Steinman v. Bush, Case No. 98-6496-CIV- FERGUSON, was filed in the United States District Court for the Southern District of Florida. One of the defendants was the Florida Department of Children and Family Services. On June 27, 2000, a settlement agreement was signed by the parties to the Prado-Steinman litigation. Petitioners allege that the initial basis for Respondent's denial of funding for Student G.F.'s placement was an agency statement purportedly based entirely upon Respondent's interpretation of the settlement agreement reached in Prado- Steinman, that Medicaid waiver funding is unavailable for facilities with a capacity to house more than 15 persons. Specifically, page 16 of the Settlement Agreement dated June 29, 2000, paragraph (F)(1), "Group Home Placement" reads as follows: The parties agree that they prefer that individuals who are enrolled in the Waiver live and receive in smaller facilities. Consistent with this preference, the parties agree to the following: The Department will target choice counseling to those individuals, enrolled on the Waiver and who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete this choice counseling by December 1, 2001. See generally Prado-Steinman v. Bush, 221 F.3d 1266 (11th Cir. 2000). At paragraph 24 of the Amended Petition, Petitioners assert that the alleged agency statement, which has not been adopted as a rule, are the statements by Respondent that the agency will not authorize Medicaid waiver funding for facilities with a greater number of beds than specified in the agreement and that the NDA is not an eligible Medicaid waiver facility under the agreement. The settlement agreement does not prohibit placement of individuals who are enrolled in the HCBS Medicaid Waiver Program with specific facility sizes. The portion of the agreement that refers to residential facilities concerns Group Home Placements, as quoted in paragraph 19 above, and provides that Respondent will (1) counsel residents of residential habilitation centers where more than 15 persons reside about alternative residential placements; (2) will develop alternative residential placements; (3) will encourage the use of client advocates for residents of residential habilitation centers who have no family, friends, or guardian to advocate on their behalf; and (4) will not fill vacancies in residential habilitation centers with individuals enrolled on the waiver. Paragraph J of the Settlement Agreement, found on page 25, provides that Respondent will continue to develop residential program models that encourage an environment for self- determination. Further, Respondent will emphasize to support coordinators that the annual needs assessment for waiver recipients should include an assessment of the need for alternative placement. The focus of the language is to move more clients into residences meeting the policy and philosophy of Chapter 393, Florida Statutes. Parents were given the opportunity to take their children out of institutions and into less restrictive environments. At paragraph 27, the Amended Petition alleges that the use of the Settlement Agreement "to adversely affect the interests of the Petitioners is an invalid exercise of delegated legislative authority" as defined in Subsection 120.56(4), Florida Statutes (2004). The Amended Petition makes no allegation that the alleged agency statement, which has not been adopted as a rule is arbitrary or capricious, even if that standard were applicable to a petition under Subsection 120.56(4), Florida Statutes (2004), nor does the Amended Petition allege that the alleged agency statement is in violation of federal law. The Amended Petition does not include AHCA as a party and does not mention Florida Administrative Code Rule 59G-8.200, although, Petitioners have been aware of the rule since early in this rule-challenge proceeding. The Amended Petition does not cite any proposed or existing rule or delineate a challenge to any proposed or existing rule, regardless of the promulgating agency. The Amended Petition does not allege that Florida Administrative Code Rule 59G-8.200 somehow violates federal law. AHCA began rule-making to adopt a handbook for the HCBS Medicaid Waiver Program in October 2001. Rule-making was initiated to meet the requirements of the federal Center for Medicare and Medicaid Services. It requires the states who participate to promulgate handbooks. AHCA published its notice of rule development in Volume 27, No. 52 of the Florida Administrative Weekly dated December 28, 2001. AHCA held seven rule workshops concerning the Medicaid Handbook: two in Tallahassee (January 14, 2002, and February 14, 2002); one in Pensacola (February 27, 2002); one in Jacksonville (February 19, 2002); one in Tampa; one in Orlando (February 22, 2002); and one in Fort Lauderdale (February 15, 2002). The workshops were attended by a large number of persons and representatives of advocacy groups. The rule notice was published in Volume 28, No. 18 of the Florida Administrative Weekly dated May 3, 2002. A public hearing was held on May 28, 2002. Subsequent to the public hearing, a notice of change was filed and a second public hearing was held on August 19, 2002. Florida Administrative Code Rule 59G-8.200, and the Medicaid Handbook incorporated therein by reference, were originally adopted on October 27, 2002. It has since been amended. Florida Administrative Code Rule 59G-8.200(12) currently provides in pertinent part: (12) Developmental Services Waiver – General. This rule applies to all Developmental Services Waiver Services providers enrolled in the Medicaid program. All Developmental Services Waiver Services providers enrolled in the Medicaid program must comply with the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, October 2003, incorporated by reference, and the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, October 2003. Both handbooks are available from the Medicaid fiscal agent. The Developmental Disabilities Waiver Services Provider Rate Table, November 2003, is incorporated by reference. The Developmental Disabilities Waiver Services Provider Rate Table is available from the Medicaid fiscal agent. Chapter 1 of the Handbook is entitled, "Purpose, Background and Program Specific Information," and contains general definitions. "Licensed Residential Facility" is defined at pages 1-3 as: Facilities providing room and board, and other services in accordance with the licensing requirements for the facility type. Community-based beneficiaries with developmental disabilities may receive DS waiver services while residing in: Group and foster homes licensed by the Department of Children and Families in accordance with Chapter 393, Florida Statutes, and Chapter 409, Florida Statutes. Comprehensive, transitional education program facilities, licensed by the Department of Children and Families in accordance with Chapter 393, Florida Statutes. Assisted Living Facilities, and Transitional Living Facilities, licensed by the Agency for Health Care Administration in accordance with Chapter 400, Florida Statutes. Residential Habilitation Centers and any other type of licensed facility not mentioned above, having a capacity of 16 or more persons, if the beneficiary has continuously resided at the facility since August 8, 2001, or prior to this date. "Institution" is generally understood by persons in the disabilities profession as a facility with more than 15 beds that is self-contained, providing all the needs of its residents, as opposed to a more home-like environment. The "best practice" model for developmental disabilities services is a group home with six beds. Respondent interprets these provisions to mean that Medicaid waiver funding is unavailable for a residential placement if the facility has a capacity of 16 or more persons, unless the beneficiary has continually resided at the facility since August 8, 2001, or prior to that date. The Medicaid Handbook is incorporated by reference in AHCA's rule. (Fla. Admin. Code R. 59G-8.200) Respondent has not promulgated a separate administrative rule pursuant to Chapter 120, Florida Statutes (2004), that incorporates the Medicaid Handbook or any part of it into its own rules. However, it did cooperate and coordinate with AHCA when the rule and Medical Handbook were adopted, as required by Subsection 408.302(1), Florida Statutes. AHCA and Respondent have entered into an agreement by which Respondent has agreed to implement the HCBS Medicaid Waiver Program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS Medicaid Waiver Program, and Respondent is required to operate the program in accordance with those policies, rules, and regulations. Section 409.919, Florida Statutes, and AHCA's rule incorporating the Medicaid Handbook by reference, supplied Respondent with the necessary rule authority to deny the funding. Petitioners have failed to prove that page 96 of the Settlement Agreement dated June 29, 2000, paragraph (F)(1) in the Prado-Steinman case, was relied upon to deny Student G.F. Medicaid waiver benefits. Petitioners have failed to prove that page 16 of the Settlement Agreement was an unpromulgated rule. Petitioners cannot challenge a provision in the Medicaid Handbook, which has been adopted by reference in Florida Administrative Code Rule 59G-8.200(12), when the agency which adopted the rule is not a party to this proceeding.
Findings Of Fact Background At all times material to this proceeding, Redi-Care was a corporation doing business as a home health care agency in Florida and was duly licensed in that capacity by the Department. Prior to May 4, 1989, Redi-Care was not certified to receive payment for services provided to Medicaid recipients under the Florida Medicaid Program. At times, however, Redi-Care did provide services to Medicaid recipients under a waiver program involving "Home and Community Based Services." This program receives funding from a separate appropriation than the one administered by the Department for the Florida Medicaid Program. Since the sale of some of the corporate assets on July 31, 1990, Ms. Ingeborg G. Mausch, Ph.D., has been authorized by the corporation to proceed with the collection of the accounts receivable that remained with the corporation. This proceeding involves Redi-Care's request for payment from the Department for medical services provided to two Medicaid eligible recipients, Richard Mow and Claire Jester. The Florida Medicaid Program is jointly funded by the federal and state governments. The Department is the state agency responsible for the administration of Medicaid funds from both funding sources. To the extent monies are appropriated, the Department is authorized to provide payment for medical services given to Medicaid eligible recipients through certified home health care agencies. Consultec was awarded the contract to replace EDS as the provider of fiscal agent services and the Medicaid agent for the Florida Medicaid Program in 1988. Pursuant to the agreement, Consultec was to become responsible for the enrollment of new providers and the processing of claims on December 15, 1988. Prior to the assumption of the fiscal agent duties, Consultec was responsible for the re-enrollment of all existing Florida Medicaid Providers into the Florida Medicaid Management System as it had been redesigned by Consultec. Current enrollees were given new provider numbers to be used on all submissions made on or after the December 15, 1988 date. Any claims submitted prior to December 15, 1988 would be processed by Electronic Data Systems Corporation (EDS) under the provider numbers previously issued by that entity. As part of the re-enrollment program, Consultec also created vendor numbers for those home health care agencies involved in the waiver program. These vendor numbers are used within the Department's Developmental Services and Aging Adult Services operations. In the past, home health care providers have not had access to these numbers. Consultec sent Vendor Information Sheets to all providers within the HRS Developmental Services and Aging Adult Services Waiver Program for "Home and Community Based Services" on October 7, 1988. Redi-Care was listed as a provider with the waiver program at the time the vendor re-enrollment occurred. Upon receipt of the Vendor Information Sheet, Redi-Care certified that the information on the sheet prepared by Consultec was correct. The document was returned to Consultec, as requested on the form, on October 19, 1988. Unbeknownst to those providers who completed the form, Consultec was planning on issuing them vendor numbers. Although each of the providers had such vendor numbers in the past, these numbers were never specifically issued to them because the Department undertook the responsibility to complete that portion of the waiver program's documentation. Application Process Originally, Redi-Care applied for enrollment as a "Medicaid Provider" in 1987. This original application was abandoned by Redi-Care when it learned that a provider had to be Medicare eligible as well. Instead, Redi-Care became a provider of "Medicaid Home and Community Based Services" in the waiver program. In July of 1988, "Medicaid Providers" were no longer required to be Medicare eligible. Based upon this policy change, Redi-Care reapplied to the Department for enrollment as a "Medicaid Provider" who provides medical services to recipients of the Florida Medicaid Program. The enrollment application, known as a "Request for Certification," was completed by Redi-Care on September 7, 1988. Assurance of Compliance with Title VI of the Civil Rights Act of 1964 was attached to the application. The Ownership and Control of Interest Statement was completed by Redi-Care, but the evidence presented reveals that it may not have been included in the application documents sent to the Department's Office of Licensure and Certification on September 7, 1988, or shortly thereafter. Pursuant to the agreement still in effect between the Department and EDS on the date of the submission of the application, EDS was the Medicaid Agent responsible for the review and processing of Redi-Care's application to become a Florida "Medicaid Provider" once it was received by EDS from the Department's Office of Licensure and Certification. Because Redi-Care was already licensed as a home health agency, the Department's Office of Licensure and Certification was not required to grant a license prior to the transfer of this enrollment application to EDS. All that was required was a certification survey from this branch of the Department and a copy of Redi-Care's active license. When the Office of Licensure and Certification went to complete the survey, the representative of the Department confused this Redi-Care entity with an entity next door known as Redi-Care, Inc. Consequently, the Redi-Care corporation seeking certification as a "Medicaid Provider" was not surveyed as it had requested via all of the proper channels. As the Office of Licensure and Certification was unaware of its mistake regarding the Redi-Care entities, this Redi-Care application package was sent on to EDS for review and processing of the application without the documentation required from the Department. After a few weeks, because Redi-Care was generally familiar with the application process from its prior experience, the Department was contacted and the follow-up package was requested. Redi-Care was sent a copy of the Medicaid Provider Agreement, which was signed and returned to the Office of Licensure and Certification on or about November 18, 1988. Within a day or two after Redi-Care mailed the Medicaid Provider Agreement, a letter was received from Consultec which referred to Redi-Care as a "Medicaid Provider." Redi-Care was thanked for re-enrolling in the program and was issued a Florida Medicaid Provider number for Home and Community Based Services. In actuality, the letter from Consultec was providing Redi-Care with the vendor number described previously in these Findings of Fact for use in the waiver program. Redi-Care was unaware that such a number was to be issued because it had not received such a number in the past, nor was it advised that one was forthcoming. When Ms. Mausch read the letter on behalf of Redi-Care, she assumed it related to the recent reapplication for Medicaid certification submitted in September 1988. The first sentence of the letter thanking Redi- Care for "re-enrollment" was interpreted as an acknowledgement of the first application for enrollment which had been abandoned, and an appreciation of the facility's current decision to assist in the provision of home health care to Medicaid recipients. Because the body of the letter appeared to be tailor made to Redi-Care's recent decision to participate as a "Medicaid Provider", Redi- Care believed its pending application for enrollment had been approved. When the letter was read and interpreted by Ms. Mausch, she failed to notice that the letter was issued four days prior to Redi-Care's submission of the Medicaid Provider Agreement, and specifically referred to "Home and Community Based Services." This mistake does not dissuade the Hearing Officer from finding Redi-Care's interpretation of the document was reasonable in light of all of the surrounding circumstances under which it was read. The references to Redi-Care as a "Medicaid Provider" in this letter issued by Consultec was ambiguous. The technical term "Medicaid Provider" was misused in a generic sense. Although the more casual use of the term might not have been misleading to most providers in the waiver program, it was very misleading to Redi-Care, who was awaiting the issuance of a "Medicaid Provider" number from the Medicaid Program. At the time the Consultec letter of November 14, 1988 was issued, EDS was the Department's Medicaid agent responsible for the review and processing of Florida's "Medicaid Provider" applications. On December 5, 1988, EDS acknowledged its receipt of Redi-Care's application to become a Florida "Medicaid Provider." The application packet was returned to Redi-Care, who was advised that additional items needed to be available with the application for processing to occur. Redi-Care was required to submit a copy of the Ownership and Control of Interest Statement. The Office of Licensure and Certification was required to complete its certification survey and submit this, along with a copy of Redi-Care's active license. The requests made by EDS were questioned by Redi-Care for the following reasons: Consultec's letter of November 11, 1988, appeared to have already approved the Medicaid enrollment, and the Office of Licensure and Certification had already been notified by Redi-Care two months earlier, and should have sent a copy of the license and survey to EDS. Instead of calling EDS, Ms. Mausch contacted Consultec, who had recently issued the "Medicaid Provider" number. During the conversation with "Deborah" of Consultec, who represented she was able to speak to Ms. Mausch's concerns, Redi-Care was advised that it need not complete the directions issued by EDS because a "Medicaid Provider" number had already been assigned by Consultec. It is unknown what exactly was said by Ms. Mausch to "Deborah" which resulted in this reply. However, the advice from "Deborah" was accepted and relied upon by Redi-Care because it was very compatible with what Redi-Care was willing to do under the known circumstances and what it reasonably believed the facts to be. Neither Redi-Care nor EDS were advised of the Department's failure to conduct the certification survey. It is also unknown whether the Department was aware of its confusion of the two Redi-Care entities at this point in time. Shortly after the re-application was returned to Redi-Care by EDS, this Department agent was relieved of its responsibility to review and process Florida "Medicaid Provider" applications. This responsibility was transferred to Consultec, the new Medicaid agent. At the time of the transfer, Consultec interpreted the return of Redi-Care's application for further attachments as a rejection of the application by EDS. Therefore, no further action was taken by Consultec on the application because it was considered to be a resolved matter. It should be noted however, that Redi-Care had not been advised that its application had been rejected, nor was any completion deadline given before rejection would occur. Redi-Care heard nothing more about the application after the discussion with "Deborah", so it continued to rely upon the representation that the new Florida "Medicaid Provider" number had been properly issued by the new Medicaid agent, and that nothing more was currently required of Redi-Care prior to its acceptance of Medicaid eligible recipients. The Acceptance and Care of Medicaid Eligible Recipients Once Redi-Care began to hold itself out as a home health agency who could accept Medicaid eligible recipients under the Medicaid Program, Richard Mow and Claire Jester were referred by their physicians and accepted as clients. There is no dispute in these proceedings about the Medicaid eligibility of either Richard Mow or Claire Jester. Further, there is no dispute regarding the quality of medical care, the dates of services, the necessity for the services and the reasonableness of the amount of the bills submitted for claims review and processing under the Medicaid Program. Richard Mow and Claire Jester were accepted as clients and services were performed based upon Redi-Care's reliance upon the representation that Redi-Care had a valid "Medicaid Provider" number that would allow it to receive payment from Medicaid appropriations for the medical care of these two clients. The Department was aware of the acceptance of these two Medicaid eligible recipients as clients by Redi-Care. The Department was also aware that they were being provided medical services for which Redi-Care expected to be reimbursed by the Medicaid Program. The two clients also relied upon this method of payment for the medical services provided by Redi-Care as third-party beneficiaries to the purported agreement between Redi-Care and the Medicaid Program. The amount of the claim submitted for services provided to Richard Mow from February 8, 1989 through April 16, 1989 was $7,411.45. The amount of the claim submitted for services provided to Claire Jester from February 12, 1989 through April 30, 1989 was $753.83. The Submission of Claims and Claims Denial Redi-Care first submitted billings and notes for the claims involving Richard Mow and Claire Jester to Consultec on March 29, 1989. On April 11, 1989, Redi-Care contacted Elizabeth Campbell, a Human Services Program Specialist with the HRS Medicaid Program Office in Fort Myers, Florida. At the time Ms. Campbell was contacted, her job duties included claims resolution for providers in the home health and nursing home areas. The purpose of the phone call from Redi-Care was to ask Ms. Campbell to find out why it had not received word on its claim submission to Consultec for Richard Mow and Claire Jester. After Ms. Campbell researched the issue, she discovered that Redi-Care was not listed as a "Medicaid Provider" on the rolls maintained by Consultec. Redi-Care was ineligible for payment through Medicaid. Payment could be received only as a provider of "Home and Community Based Services" under the waiver program. When Redi-Care was advised that it did not have a "Medicaid Provider" number on April 11, 1989, the Department was told about the information given to Ms. Mausch by Consultec's letter and her follow-up conversation with "Deborah". Ms. Campbell, as a representative of the Department, assured Redi-Care that the matter would be pursued further. In the meantime, through its employees, the Department allowed Redi-Care to continue to rely on the representation that it would be paid at the Medicaid rates for the continuing care provided to Richard Mow and Claire Jester. On April 12, 1989, Ms. Campbell recorded in her field notes that she did not make any assurances to Redi-Care that it would be paid for providing services for the two clients. However, there is no evidence to show that she affirmatively advised Redi-Care that they might not get paid for past or continuing services. Redi-Care was allowed to continue to care for the clients under the the assumption that Medicaid would provide payment. On April 18, 1989, it was clear to Department employees involved in this factual scenario that the Office of Licensure and Certification had confused this Redi-Care entity with Redi-Care, Inc. when the survey and certification was scheduled to occur in November 1988. This mistake had never been corrected. On April 26, 1989, Consultec completed its review of the claims submitted by Redi-Care and denied the claims because Redi-Care did not have a "Medicaid Provider" number. Attempts to Cure Certification Issue The Office of Licensure and Certification completed its survey on May 4, 1989. Redi-Care's enrollment application was complete, and contained all of the required information on this date. Although no deficiencies were noted during the survey, the Department did not send a copy of the letter stating Redi-Care met its requirements until June 27, 1989. On that date, the letter was sent to Redi-Care, who was required to forward it to Consultec, along with the application Redi-Care had previously submitted with the attachments requested in December 1988 by EDS. Once Redi-Care received the letter in early July 1989, the information was immediately forwarded to Consultec. Consultec reviewed the application and issued Redi-Care a "Medicaid Provider" number on August 6, 1989. When Redi-Care received its "Medicaid Provider" number, it was advised by Consultec that it could use this number to submit billings to the Medicaid Program for eligible services provided since September 1988. Apparently, Consultect relied on the date EDS acknowledged receipt of the application and related the eligibility date to the 90 day period prior to the application receipt. On September 19, 1989, the Department issued a letter through the Program Administrator, Medicaid Program Office, advising Redi-Care that the Medicaid billings for Richard Mow and Claire Jester would not be paid by the Medicaid Program, even though these services were provided after the effective date of eligibility given to Redi-Care by Consultec in its letter of August 6, 1989. The Department's letter advising Redi-Care of the Medicaid Program's decision to deny payment for the services provided to the two Medicaid eligible recipients also told Redi-Care that its "Medicaid Provider" number could be used only for services rendered on or after May 4, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended: Redi-Care's application for enrollment as a "Medicaid Provider" be deemed complete on May 4, 1989. Redi-Care's eligibility period to submit claims as a "Medicaid Provider" should be listed as February 4, 1989, based upon the eligibility period set forth in the "Medicaid Provider Handbook, Home Health Care Services" in effect on the date the application was completed. The Department waive time limits for claims received beyond the usual 12 month period, as allowed in Rule 10C-7.030(6), Florida Administrative Code, based upon the unusual circumstances of this case because the circumstances pose an undue hardship on the provider or recipients. That the claims for services provided to Richard Mow and Claire Jester be re-submitted to Consultec for claims processing once the 12-month deadline is waived by the Department. That the amount of the reimbursement allowed to Redi-Care should be provided at the rates in effect at the time the services were rendered. RECOMMENDED this 11th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6923 Redi-Care's proposed findings of fact are addressed as follows: Accepted. See HO number 4. Accepted. See HO number 5. Accepted. Accepted. Accepted. Accepted. See HO number 15. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 40. Accepted. Accepted. See HO number 42. Accepted. See HO number 14 - number 27. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 45. Accepted. See HO number 29. Accepted. See HO number 38. Accepted. See HO number 35. Rejected. Contrary to fact. See HO number 5 - number 7 and number 16. Rejected. Contrary to fact and Redi-Care Exh. number 9. Rejected. See HO number 35 - number 38. Accepted. See HO number 39. Accepted. Rejected. Contrary to fact. Accepted. Rejected. Improper conclusion of law. Accepted. See HO number 32. Accepted. See HO number 33. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 8. Accepted. Accepted. See HO number 8. Accepted. See HO number 9. Reject due to use of technical term "Medicaid Provider." See HO number 18. Otherwise, accepted. See HO number 15. Accepted. Accepted. See HO number 28. Accepted. See HO number 30 - number 31. Accepted. See HO number 34. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 5. Accepted. Accepted. Accepted. Accepted. See HO number 2. Accepted. See HO number 2. The Department's proposed findings of fact are addressed as follows: Accepted. See HO number 2. Accepted. See HO number 3. Rejected. Contrary to fact. See HO number 5. Accepted. See HO number 1. Accepted. See HO number 1. Accepted. See HO number 5, number 15 and number 16. Accepted. See HO number 6 and number 7. Accepted. See HO number 7. Accepted. Accepted. See HO number 15 and number 16. Accepted. See HO number 45. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Conclusion of Law, not fact. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 5. Accepted. Accepted. Accepted. Accepted. Accepted. See HO number 9. Accepted. See HO number 40. Accepted. Accepted. See HO number 43 - number 45. Rejected. Improper conclusion. Accepted. Accepted. See HO number 20. Accepted. See HO number 22 - number 24. Rejected. Contrary to fact. See HO number 27. Rejected. Irrelevant to this proceeding. Consultec's proposed findings of fact are addressed as follows: Accepted. See HO number 1 - number 2. Accepted. See HO number 3. Accepted. See HO number 3. Generally accepted, except for the dates of enrollment and claims processing. See HO number 4 and number 5. Accepted. See HO number 5 - number 7. Rejected. Conclusionary and contrary to fact. See HO number 15 - number 17. Accepted. See HO number 15 - number 17. Accepted. Rejected. Contrary to fact. See HO number 20. Accepted, except for the conclusion that this was a rejection letter. See HO number 20 and number 26. Reject the classification as rejection letter. Improper conclusion. See HO number 20. The rest of the paragraph is factually correct. See HO number 22 - number 24. Rejected. Irrelevant. Rejected. Improper definition of hearsay. Accepted. Accepted. See HO number 45. Accepted. See HO number 40. Accepted. See HO number 40. Rejected. Contrary to fact. See HO number 16, number 17 and number 27. COPIES FURNISHED: Karel Baarslag, Esquire Senior Attorney Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building Six, Room 233 Tallahassee, Florida 32399-0700 Barry Roth, Esquire COHEN AND ROTH, P.A. 1375 Jackson Street, Number 201 Post Office Drawer 2650 Fort Myers, Florida 33902-2650 Ken Syler CONSULTEC, INC. 2002 A1 Old St. Augustine Road Post Office Box 5497 Tallahassee, Florida 32314-5497 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether Respondent committed the offense set forth in Petitioner's letter of agency action dated March 9, 2012, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, New Life was issued individual Medicaid provider number 140680900. At all times material hereto, New Life was enrolled as an assisted living facility. At all times material hereto, New Life had a valid Medicaid Provider Agreement with AHCA (Agreement). Under the Agreement, New Life was authorized to provide assistive living services to Medicaid recipients. The Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, effective July 2009, hereinafter Handbook, provides, among other things, requirements of Medicaid home health services providers and sets forth pertinent Medicaid policies and service requirements. The Handbook is provided to each Medicaid provider upon enrollment into the Medicaid program and is available online. Each provider is expected and presumed to be familiar with the Handbook. The Handbook was incorporated by reference into rule 59G-4.025, Assistive Care Services. No dispute exists that, at all times material hereto, New Life was an assistive care services provider as defined by the Handbook. The Handbook provides in pertinent part: Recipients receiving Assistive Care Services must have a complete assessment at least annually . . . or sooner if a significant change in the recipient's condition occurs . . . . An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. The assessment for a resident of a ALF . . . must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. * * * The assessment for ALF [assisted living facility] residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. * * * Along with the annual assessment requirement, all recipients receiving ACS [Assistive Care Services] must have an updated Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA- Med Serv Form 035, July 2009, signed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) and the Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, completed and available in the recipient's case file at the facility. * * * Every ACS recipient must have a service plan completed by the ACS service provider. The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, shall be used for each recipient receiving ACS. The form must be included in the recipient's case file at the facility. The ALF, RTF [residential medical facility] and AFCH [adult family care home] are responsible for ensuring the service plan is developed and implemented. * * * The Resident Service Plan for Assistive Care Services (AHCA-Med Serv Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing and based on information contained in the health assessment. . . . * * * A new service plan is required on an annual basis or sooner if a significant change in the recipient's condition occurs. The new service plan must be completed no more than 15 days after the annual assessment or an assessment because of a significant change in the recipient's condition. * * * In addition to records required by the applicable licensure standards, ACS records that must be kept include: Copies of all eligibility documents; Health Assessment Forms, AHCA Form 1823 . . .; Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA-Med Serv Form 035; The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036; and The Resident Service Log, AHCA-Med Serv Form 037. This documentation must be maintained at the facility, kept for at least five years, and be made available to the Agency for Health Care Administration monitoring or surveyor staff or its designated representative, upon request. . . . * * * ACS documentation may be in electronic format. The original, signed . . . documents must be kept in the recipient's case file in the facility . . . for audit, monitoring and quality assurance purposes. . . . Handbook at P 2-7 through 2-11. AHCA's investigator performed a site visit at New Life on December 8, 2011. The investigator reviewed case files of residents for the service-period covering January 1, 2011, through November 30, 2011 (service-period). AHCA's investigator found deficiencies in the case files of seven residents at New Life: M.B.; R.F.; E.H.; R.J.; I.M.; K.L.; and J.S. Additional documents, not contained in the case files during the site visit, were provided subsequent to the site visit. Regarding Resident M.B., the Health Assessment and the Resident Service Plan were dated August 17, 2010, which was after the service-period; and the Certification of Medical Necessity was dated March 28, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident M.B. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. As to Resident R.F., the Health Assessment was dated January 1, 2011, which was within the service-period but not up- to-date; the Resident Service Plan was up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.F. lacked the Health Assessment and Certification of Medical Necessity for the service-period. Regarding Resident E.H., the Health Assessment was dated January 24, 2011, and was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated September 27, 2002, with no more recent Certification of Medical Necessity. The evidence demonstrates that the case file of Resident E.H. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. As to Resident R.J., the parties stipulated that the Health Assessment was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.J. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. Regarding Resident I.M., the Health Assessment and the Resident Service Plan were up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-plan and after the site visit. The evidence demonstrates that the case file of Resident I.M. lacked the Certification of Medical Necessity for the service-period. As to Resident K.L., the Health Assessment was dated March 1, 2012, which was not within the service-period and after the site visit; the Resident Service Plan was not provided; and the Certification of Medical Necessity was provided, but the date as to the year was unintelligible even though the month and day were intelligible, i.e., March 1. The evidence demonstrates that the case file of Resident K.L. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. Regarding Resident J.S., the Health Assessment was dated August 22, 2009, which was not within the service-period; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and was after the site visit. The evidence demonstrates that the case file of Resident J.S. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service period. The Director and owner of New Life is Ethel Newton. Ms. Newton has been the Director and owner for the past 13 years. She was not familiar with the Health Assessment form, the Resident Service Plan form, or the Certification of Medical Necessity form. Ms. Newton advised AHCA's investigator that she was not familiar with the forms and admitted same at the hearing. Ms. Newton historically depended upon the assistance of the Department of Children and Family Services (DCF) to complete any required forms. She depended upon DCF until 2005 when DCF closed its local office which had been assisting her. After DCF closed its local office, Ms. Newton depended upon the residents' case managers at New Horizons, an agency where the residents' physicians are located, to complete any required forms. Five of the seven residents had case managers at New Horizons; J.S. and E.H. did not have case managers at New Horizons. E.H. is no longer a resident at New Life. Ms. Newton is willing to cooperate with AHCA and do whatever it takes to have the required forms completed timely and correctly. The evidence does not demonstrate that Ms. Newton intentionally failed to complete the required forms. None of the seven residents were harmed as a result of the deficiencies in the documentation. No evidence was presented demonstrating that New Life has any prior administrative sanction or penalty. No evidence was presented demonstrating that New Life has any prior violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility, violated Florida Administrative Code Rule 59G-9.070(7)(e) by failing to have in the case files of Resident M.B., Resident K.L., and Resident J.S. a Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident R.F. a Health Assessment and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident E.H. and Resident R.J. a Resident Service Plan and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; and by failing to have in Resident I.M.'s case file a Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; Requiring New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility to enter into a corrective action plan; and Imposing a fine against New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility in the amount of $1,750.00. S DONE AND ENTERED this 14th day of November, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2012.
The Issue The issue for determination is whether Respondent was overpaid by the Medicaid program as set forth in Petitioner's Final Audit Report dated May 18, 2009, for the period July 1, 2004, through June 30, 2006.
Findings Of Fact AHCA audited certain of Nationwide's Medicaid claims pertaining to services rendered between July 1, 2004, and June 30, 2006, hereinafter the audit period. Nationwide was an authorized Medicaid provider of home health services to Medicaid recipients during the audit period. During the audit period, Nationwide had been issued Medicaid provider number 650065000. No dispute exists that, during the audit period, Nationwide had a valid Medicaid Provider Agreement with AHCA (Agreement). No dispute exists that, during the audit period, Nationwide received payment for services to Medicaid recipients, including for the services that are being disputed in the Amended FAR. The Agreement provided, among other things, that the submission of Medicaid claims by Nationwide for payment constituted a certification that the services were provided in accordance with state and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medicaid provider handbooks issued by AHCA. Pursuant to the federal Deficit Reduction Act of 2005, the federal Centers for Medicare and Medicaid Services (CMS) contracted with Catapult Consultants, LLC (Catapult) to conduct several audits in Florida in cooperation with AHCA's Bureau of Medicaid Program Integrity (MPI). MPI's primary responsibility is to audit healthcare providers who participate in the Florida Medicaid Program and to ensure that Medicaid providers are only reimbursed for services that are in accordance with Florida Medicaid handbooks and rules. Catapult conducted the audit on Nationwide. MPI oversaw and reviewed Catapult's audit of Nationwide. Nationwide was noticed by CMS that Catapult would be conducting an audit on Nationwide for the audit period. MPI provided Catapult with a list of sample claims to be audited. Catapult requested from Nationwide (a) documentation and complete medical records for the recipients of the service, and (b) dates of service in the sample claims. Catapult reviewed the documents and records received from Nationwide to determine (a) what services were provided, and (b) whether the services were provided in compliance with Medicaid policies and procedures. Catapult prepared a draft audit report and provided it to CMS. CMS reviewed the draft audit report and forwarded it to MPI for review. On July 7, 2008, CMS sent a Preliminary Audit Report (PAR) to Nationwide. The PAR included seven findings and identified an overpayment of $367,097.10 for claims that, in whole or part, were not covered by Medicaid. Nationwide was requested, among other things, to provide a response, including additional documentation, i.e., documentation not previously provided, that Nationwide wanted considered. Nationwide responded and provided additional documentation for Catapult to consider. Catapult, in cooperation with MPI, reviewed the additional documentation. Catapult completed a final audit report and provided it to CMS for review. CMS reviewed the final audit report and forwarded it to MPI. On May 18, 2009, MPI issued the FAR. The FAR included four findings: Finding No.1, Inadequate Information in the Treatment Plan; Finding No. 2, Services Billed Without a Valid Plan of Care (POC); Finding No. 3, Too Many Hours Billed by Private Duty Nurse; and Finding No. 4, Maintaining Records. The FAR identified and demanded repayment of an overpayment of $326,866.72 and imposed a fine of $2,500.00, totaling a repayment of $329,366.72. Subsequently, Nationwide again submitted additional documentation. On January 7, 2010, MPI issued an Amended FAR which included three findings: Finding No. 1, Services Billed Without a Valid POC; Finding No. 2, Too Many Hours Billed by Private Duty Nurse; and Finding No. 3, Maintaining Records. The Amended FAR identified and demanded repayment of an overpayment of $31,765.20 and imposed a fine of $2,500.00, totaling a repayment of $34,265.20. The Amended FAR and the work papers associated with the audit, which were in the form of a spreadsheet containing contemporaneous notes of the auditor, were admitted into evidence. Only claims included and considered in the FAR were included and considered in the Amended FAR. Finding No. 1, Services Billed Without a Valid POC Three sub-findings were included in Finding No. 1, Services Billed Without a Valid POC: Sub-Finding No. 1, POC Not Signed by a Physician; Sub-Finding No. 2, Rubber Stamp Used for the Physician's Signature; and Sub-Finding No. 3, Billed for Hours Outside the POC Authorization. Eighteen claims, considered overpayments by AHCA, were associated with Finding No. 1. One of the 18 claims, claim 351, was associated with Sub-Finding No. 1. The POC for claim 351 was signed by a nurse practitioner, not a physician, in violation of the Medicaid handbook. Nationwide does not dispute that claim 351 is an overpayment. Seven of the 18 claims were associated with Sub- Finding No. 2: claims 6, 12, 46, 71, 120, 189, and 219. Nationwide disputes that the claims were overpayments. All of the seven claims were for the same recipient of the services provided, T. S. T. S.'s attending physician, Carlos Diaz, M.D., approved the care for T. S. Dr. Diaz admitted that the signatures on the POCs were rubber stamped; and that the POCs were rubber stamped either by him or the nurse practitioner, but that he was not always present with the nurse practitioner when she stamped the POCs. Also, Dr. Diaz did not initial the rubber stamped signatures. Ten of the 18 claims were associated with Sub-Finding No. 3: claims 281, 298, 119, 72, 145, 167, 176, 274, 210, and Only claim 2 is disputed by Nationwide as an overpayment. Regarding claim 2, Nationwide billed for services that were rendered after the date that the recipient of the services was discharged by Nationwide.1 Finding No. 2, Too Many Hours Billed by Private Duty Nurse The basis for Finding No. 2, Too Many Hours Billed by Private Duty Nurse, is that more hours were billed than were supported by the documentation. Fourteen claims were associated with Finding No. 2: claims 333, 381, 388, 669, 27, 47, 701, 52, 6, 18, 36, 44, 500, and 82. Only claims 333, 27, 47, 701, 6, 18, 36, and 44 are disputed by Nationwide as overpayments. Regarding claim 333, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. As to claim 27, Nationwide billed for 12 hours of service. The evidence demonstrates 11.5 hours of service. Regarding claim 47, Nationwide billed for 12 hours of service. The evidence demonstrates 11 hours of service. As to claim 701, Nationwide billed for 15 hours of service. The evidence demonstrates 14 hours of service. Regarding claim 6, Nationwide billed for 12 hours of service. Nursing notes indicate that the recipient of the service received radiation therapy for two hours. The evidence demonstrates 10 hours of service. As to claim 18, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. Regarding claim 36, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. As to claim 44, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. The private duty nurses were LPNs. Private duty nurses are paid an hourly rate. No evidence was presented that payment was authorized for a portion of an hour. For total service hours that were one-half of an hour, AHCA rounded down to the nearest hour. As a result, claims 333, 18, 36, and 44 were rounded to six hours of service; and claim 27 was rounded to 11 hours of service. The evidence demonstrates that claims 333, 18, 36, and 44 were appropriately rounded to six hours of service; and claim 27 was appropriately rounded to 11 hours of service. Finding No. 3, Maintaining Records Three claims were associated with Finding No. 3: claims 622, 30, and 507. Nationwide failed to maintain records to support the services provided. Nationwide does not dispute that the three claims were overpayments. Accuracy of the Formula No dispute exists as to the accuracy of the formula used to calculate the total overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Nationwide Healthcare Services, Inc., received overpayments from the Medicaid program in the amount of $31,765.20 for the audit period July 1, 2004, through June 30, 2006; imposing a fine of $1,500.00; and requiring Nationwide Healthcare Services, Inc., to repay the overpayment of $31,765.20, plus a fine of $1,500.00, totaling $33,265.20. DONE AND ENTERED this 11th day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2011.
The Issue The issues in this case are: (1) Whether Respondent violated section 409.913, Florida Statutes, by failing to have documentation evidencing the receipt of current Zero Tolerance training in three employees' files; failing to have documentation showing that one employee has a high school diploma or equivalent; failing to have documentation of an implementation plan in one consumer's file; failing to have documentation of quarterly summaries in one consumer's file; and failing to have written policies and procedures addressing the staff training plan and specifying how pre-service and in- service activities will be carried out, including HIV/AIDS training, cardiopulmonary resuscitation training, and all other training mandated pursuant to section 381.0035; and (2) if so, the penalty that should be imposed.
Findings Of Fact The Parties and Medicaid Provider Agreement Petitioner is the state agency responsible for administering the Florida Medicaid Program2/ pursuant to chapter 409. Petitioner's duties include operating a program to oversee the activities of Medicaid recipients, providers, and their representatives to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913(1), Fla. Stat. To that end, Petitioner is authorized to conduct investigations of Medicaid providers to determine compliance with the Medicaid program. § 409.913(2), Fla. Stat. At all times relevant to this proceeding, Respondent was an enrolled Medicaid provider3/ providing residential rehabilitation and companion care services to the developmentally disabled pursuant to a valid Medicaid Provider Agreement ("MPA") with Petitioner.4/ The MPA establishes the terms and conditions of an enrolled provider's participation in the Medicaid program. A key condition is that the provider agrees to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program, including the Medicaid Handbooks. The Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook, dated November 2010 ("Disabilities Handbook"), and the Florida Medicaid Provider General Handbook, dated July 2008 ("General Handbook"), are among the laws and policies applicable to this proceeding. Petitioner's Inspection of Respondent's Facility On September 27, 2011, Ms. Gina Selwitz, an Inspector Specialist with Petitioner's Bureau of Medicaid Program Integrity ("MPI"),5/ along with another employee of Respondent's Bureau of MPI and a representative from the United States Department of Health and Human Services Centers for Medicare and Medicaid Services, conducted a site inspection at Respondent's facility, to determine Respondent's compliance with applicable Medicaid Program requirements. In the course of the inspection, Ms. Selwitz and the other inspection team members reviewed Respondent's employee records and recipient files for compliance with applicable Medicaid program requirements. They contemporaneously documented their findings on checklists. While at the facility, Ms. Selwitz hand-delivered a demand letter with an attached provider questionnaire form and a Certification of Completeness form to Respondent. The letter stated in pertinent part: Pursuant to Section 409.913, Florida Statutes ("F.S."), this is official notice that the Agency requests that documentation for services paid by the Florida Medicaid program to the above provider number. The Medicaid-related records to substantiate billing for the recipients identified on the enclosed printout are due within fifteen (15) calendar days of our receipt of this notification. In addition, please complete the attached questionnaire and submit it along with the copies of the Medicaid- related records. Please submit the documentation and the attached Certification of Completeness of Records to the Agency within this timeframe.... Respondent signed a form acknowledging receipt of the demand letter. Respondent completed and signed the provider questionnaire and the Certification of Completeness form and submitted them, along with the requested records, to Petitioner. By signing the Certification of Completeness form, Respondent verified that the records it provided were true and correct copies of all requested information. Petitioner received the records and completed forms on October 4, 2011. After the inspection was completed, Ms. Selwitz reviewed the checklists prepared during the inspection and determined that the following was missing from Respondent's files: (1) Documentation showing current Zero Tolerance training missing from employee files of Respondent's employees L.Q., A.G., and A.H.; (2) Documentation showing receipt of a high school diploma missing from the file of L.Q.; (3) Documentation of an implementation plan in the consumer file for A.G.-A.; (4) Documentation of quarterly summaries in the consumer file for L.G.; and (5) Written policies and procedures addressing the staff training plan and specifying how pre- service and in-service activities will be carried out, including HIV/AIDS training, C.P.R. training, and all other training mandated pursuant to section 381.0035. On February 22, 2011, Petitioner sent Respondent a Sanction Letter specifically identifying these deficiencies, stating that the deficiencies constitute violations of federal and state Medicaid laws, and imposing a total fine of $7,000.00. Findings Regarding Alleged Violations Zero Tolerance Training Ms. Selwitz testified that the inspection of Respondent's facility revealed that documentation evidencing the receipt of current Zero Tolerance training was missing from the employee files for A.G., A.H., and L.Q. Her testimony was supported by the inspection checklist prepared at the time of the inspection, indicating that L.Q.'s and A.H.'s employee files did not contain documentation showing that they had received Zero Tolerance training, and that the A.G.'s Zero Tolerance training had expired.6/ At hearing, Respondent conceded that A.G.'s Zero Tolerance training had expired. With respect to A.H., at hearing Respondent provided a document purporting to be an unofficial transcript from Tallahassee Community College showing that Respondent had completed Zero Tolerance in 2010, so that her training was current. However, Respondent acknowledged that this documentation was not in A.H.'s employee file at the time of Petitioner's inspection. With respect to L.Q., Respondent claims that documentation showing her current Zero Tolerance training was, in fact, present in her employee file, and that Petitioner's inspection team overlooked the documentation. Respondent noted that Delmarva7/ had inspected the facility approximately 15 days before Petitioner's inspection, and claimed that Delmarva's report did not show Zero Tolerance documentation deficiencies for L.Q.'s file. Respondent argues that this shows that that the Zero Tolerance documentation was present in L.Q.'s file when Petitioner inspected the facility and Petitioner's inspection team simply overlooked it. In support, Respondent provided a document purported to be the Delmarva inspection report. The persuasive evidence establishes that Respondent violated the requirement to maintain documentation of current Zero Tolerance Training in the employee files of A.G., A.H., and L.Q. At hearing, Respondent conceded that A.G.'s Zero Tolerance training had expired and that A.H.'s employee file did not contain the required Zero Tolerance Training documentation at the time Petitioner conducted its inspection. Further, Ms. Selwitz credibly testified that L.Q.'s employee file did not contain the required Zero Tolerance training information, and her testimony was buttressed by the contemporaneously-prepared inspection checklists. Respondent did not provide persuasive evidence to the contrary.8/ Accordingly, it is determined that Respondent violate Medicaid laws, rules, regulations, and policies by failing to have Zero Tolerance training documentation in the employee files for A.G., A.H., and L.Q. Educational Level Documentation for L.Q. Ms. Selwitz testified that during the inspection, the team determined that documentation was missing from L.Q.'s employee file showing that she possessed the required level educational training——i.e., a high school diploma or equivalent9/——to serve as direct care staff providing residential rehabilitation services. Ms. Selwitz's testimony was supported by the inspection checklist, which expressly noted the lack of high school diploma or general educational development ("G.E.D.") in L.Q.'s file and that a copy of L.Q.'s application for employment with Respondent stated that she had not graduated from high school. At hearing, L.Q., a director and employee of Respondent, testified on behalf of Respondent, and Respondent offered for admission into evidence a document purported to be L.Q.'s application for employment with Respondent. The application stated that Respondent had graduated from high school. L.Q testified that this application was completed in 2006 when she started working with Respondent, but subsequently testified that she graduated from high school in 2008. Her testimony was inconsistent with, and undercut the veracity of, the document Respondent offered to show that L.Q. met the educational training level requirement. Furthermore, even if L.Q. satisfied the applicable educational training requirements, Respondent did not provide credible evidence to overcome Petitioner's showing that the required documentation showing that training was not in L.Q.'s file when Petitioner inspected Respondent's facility. Accordingly, the credible, persuasive evidence establishes that Respondent violated Medicaid laws, rules, regulations, and policies by failing to have documentation of L.Q.'s educational status in her employee file. Inclusion of Implementation Plan in Consumer File Ms. Selwitz testified that the inspection also showed that a current Implementation Plan was not included in A.G.-A.'s consumer file, and her testimony was supported by the Residential Rehabilitation Services checklist that Petitioner's team completed at the time of the inspection. Respondent did not offer any testimony or other evidence to the contrary. Accordingly, Petitioner established that Respondent violated applicable Medicaid laws, rules, regulations, and policies by failing to have in its files a copy of the current Implementation Plan for consumer A.G.-A. Quarterly Summary Documentation in Consumer File Ms. Selwitz testified that Petitioner's inspection also revealed that Respondent failed to include a quarterly summary in L.G.'s consumer file documenting her progress, and this testimony was supported by the inspection checklists. At hearing, Respondent conceded this violation. Accordingly, Petitioner demonstrated that Respondent violated applicable Medicaid laws, rules, regulations, and policies by failing to have a quarterly summary in L.G.'s consumer file. Written Policies and Procedures Addressing Staff Training At hearing, Respondent conceded that at the time of the inspection, it failed to have written policies and procedures addressing the staff training plan and specifying how pre-service and in-service activities will be carried out, including HIV/AIDS training, C.P.R. training, and all other training mandated pursuant to section 381.0035. Accordingly, it is determined that Respondent violated applicable Medicaid laws, rules, regulations, and policies by failing to maintain this required documentation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order determining that Respondent violated federal and state Medicaid laws as charged in the February 22, 2012 Sanction Letter, and imposing a fine of $7,000.00. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 3rd day of December, 2012.
The Issue Whether Respondent engaged in sanctionable conduct in violation of Medicaid laws, as alleged in the April 9, 2012, sanction letters the Agency for Health Care Administration (ACHA) sent to Respondent in the above-styled cases, and, if so, what sanction(s) should be imposed.
Findings Of Fact AHCA is the state agency charged with administering and overseeing the Medicaid program in Florida. Housed within AHCA is the Bureau of Medicaid Program Integrity (MPI). Among MPI's responsibilities is to conduct audits and investigations to ensure that the state's Medicaid providers are in compliance with programmatic requirements. At all times material to the instant cases, Respondent was enrolled in the Florida Medicaid program under two separate provider numbers (Provider No. 679849796, as a provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services, and Provider No. 142150600, as a provider of assistive care services) and subject to the terms of Medicaid Provider Agreements,3/ which contained the following provisions, among others: (5) Provider Responsibilities: The Medicaid provider shall: * * * (b) Keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years. * * * (d) Send, at the provider's expense, legible copies of all Medicaid-related information to authorized state and federal employees, including their agents. The provider shall give state and federal employees access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records; and, in connection with Provider No. 679849796, it was also subject to the terms of a Medicaid Waiver Services Agreement with the Florida Agency for Persons with Disabilities (APD),4/ in which it had agreed, among other things, to do the following: To permit persons duly authorized by APD, the Agency for Health Care Administration (AHCA), or representatives of either, to monitor, audit, inspect, and investigate any recipient records, payroll and expenditure records, (including electronic storage media), papers, documents, facilities, goods and services of the Provider, which are relevant to this Agreement . . . . * * * Upon demand, and at no additional cost to the APD, AHCA, or their authorized representatives, the Provider will facilitate the duplication and transfer of any records or documents (including electronic storage media), during the required retention period . . . . At all times material to DOAH Case No. 12-1664MPI Respondent, as an enrolled Medicaid provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services, was bound by the following provisions of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook dealing with employee training and recordkeeping requirements, which handbook provisions were incorporated by reference (along with the other provisions of the handbook) in Florida Administrative Code 59G-13.083: Companion Provider Requirements * * * Training Requirements Proof of training in the areas of Cardiopulmonary Resuscitation (CPR), HIV/AIDS and infection control is required within 30 days of initially providing companion services. Proof of annual or required updated training shall be maintained on file for review. The provider is responsible for all training requirements outlined in the Core Assurances. Note: Refer to the Core Assurances in Appendix A for the provider training requirements. . . . * * * Appendix A: Core Assurances for Providers of Developmental Disabilities Home and Community-Based Waiver Services Program * * * 2.1 Required Training The provider and its employees will ensure they receive the specific training required to successfully serve each recipient including the following topics: * * * H. All direct service providers hired after 90 days from the effective date of this rule are required to complete the Agency for Persons with Disabilities developed Zero Tolerance Training course prior to rendering direct care services (as a pre-service training activity). Said training may only be completed via APD's web-based instruction or classroom-led instruction (using APD's approved classroom curriculum presented either by APD staff or an individual who has been trained and approved by APD to conduct such classroom trainings). In addition, all direct service providers shall be required to complete the APD developed Zero Tolerance training course at least once every three years. The provider shall maintain on file for review, adequate and complete documentation to verify its participation, and the participation of its employees, in the required training sessions. The documentation for the above listed training shall, at a minimum, include the training topic(s), length of training session, date and location of training, name and signature of trainer, name and signature of person(s) in attendance. Proof of training shall be on file and available for monitoring and review. At all times material to DOAH Case No. 12-1841MPI, Respondent, as an enrolled Medicaid provider of assistive care services, was bound by the following provisions of the Assistive Care Services Coverage and Limitations Handbook dealing with health assessments, which handbook provisions were incorporated by reference (along with the other provisions of the handbook) in Florida Administrative Code Rule 59G-4.025: Recipients receiving Assistive Care Services must have a complete assessment at least annually by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) or sooner if a significant change in the recipient's condition occurs (see below for a definition of a significant change). An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. -The assessment for a resident of a ALF or AFCH must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. -The assessment for a resident of a RTF must be completed by a physician or licensed mental health professional. The assessment must document the need for at least two of the four ACS components. The assessment for ALF residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. At all times material to both DOAH Case No. 12-1664MPI and DOAH Case No. 12-1841MPI, Respondent was also bound by the following provisions of the Florida Medicaid Provider General Handbook, which were incorporated by reference in Florida Administrative Code Rule 59G-5.020 and applied to all enrolled Medicaid providers, including providers of Developmental Disabilities Home and Community-Based Medicaid Waiver services and providers of assistive care services: Record Keeping Requirement Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010(154) F.A.C., and medical records as defined in 59G-1.010(160) F.A.C. on all services provided to a Medicaid recipient.[5/] Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. * * * Record Retention Records must be retained for a period of at least five years from the date of service. * * * Right to Review Records Authorized state and federal agencies and their authorized representatives may audit or examine a provider's or facility's records. This examination includes all records that the agency finds necessary to determine whether Medicaid payment amounts were or are due. This requirement applies to the provider's records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid- related records. The provider must send, at his expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives upon request of AHCA. At the time of the request, all records must be provided regardless of the media format on which the original records are retained by the provider. All medical records must be reproduced onto paper copies. * * * Incomplete Records Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment The foregoing contractual and handbook provisions supplemented section 409.913(9), Florida Statutes, which then provided (as it still does) as follows: A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. However, 24-hour notice must be provided if patient treatment would be disrupted. The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid- related records. The authority of the agency to obtain Medicaid-related records from a provider is neither curtailed nor limited during a period of litigation between the agency and the provider. On or about December 6, 2011, MPI investigators visited Respondent's facility to review Respondent's Medicaid-related records, but left before completing their review. Approximately a month later, MPI sent Respondent a letter, dated January 5, 2012, concerning claims that Respondent had filed under its Provider No. 679849796 as a provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services (January 5 Letter). The letter read as follows: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity is in the process of completing a review of claims billed to Medicaid during the period June 01, 2011, through December 01, 2011, to determine whether the claims were billed and paid in accordance with Medicaid policy. Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid provider to the above provider number [679849796]. The Medicaid-related records to substantiate billing for the [four] recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. Please submit the documentation and the attached Certification of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. Correspondence and requested records should be sent to the following address: Victor Rivera, Investigator Agency for Health Care Administration Medicaid Program Integrity 400 West Robinson Street, Suite S309 South Tower, Hurston Building Orlando, Florida 32801 In accordance with Section 409.913, F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. Pursuant to the aforementioned provisions, failure to provide all Medicaid-related records in compliance with this request will result in the application of sanctions, which include, but are not limited to, fines, suspension and termination. The Medicaid-related records associated with this review should be retained until [the review is] completed. If you have any questions, please contact Victor Rivera, Investigator, at (407)420- 2524. The Certification of Completeness of Records form enclosed with the letter was to be completed by the provider's "official custodian of records," and it contained the following verification and certification: I hereby verify that I have searched the Medicaid-related records maintained by the Provider and have determined that the attached records consisting of (# of pages) are true and correct copies of the Medicaid- related records requested by the Agency for Health Care Administration, Office of the Inspector General, Bureau of Medicaid Program Integrity. I further certify that these are all of the Medicaid-related records that were made at or near the time that the services were rendered by, or from information transmitted by, the Provider; are kept in the course of the regularly conducted business of the Provider; and that it is the regular practice of the Provider to keep such records. Also accompanying the letter was a printout providing information concerning "documentation organization." Among other things, it advised that the "employee documentation" that needed to be submitted included "[c]opies of all required AHCA training certificates," and it contained the further advisement that "[f]ailure to follow the aforementioned guidelines and/or failure to provide the [sic] ALL of the requested documentation for ALL staff members who provided services to Medicaid Recipients during the predetermined audit period w[ould] result in the [a]application of sanctions," including "fines." The January 5 Letter and accompanying documents were received by Respondent on January 9, 2012. Ten days later, MPI sent Respondent a second letter, dated January 19, 2012 (January 19 Letter). This letter concerned claims that Respondent had filed under its Provider No. 142150600 as a provider of assistive care services, and it provided as follows: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity is in the process of completing a review of claims billed to Medicaid during the period January 1, 2011, through November 30, 2011, to determine whether the claims were billed and paid in accordance with Medicaid policy. Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid provider to the above provider number [143150600]. The Medicaid-related records to substantiate billing for the [four] recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. Please submit copies of the Medicaid-related records and the attached Certification of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. Correspondence and requested records should be sent to the following address: Victor Rivera, Investigator Agency for Health Care Administration Medicaid Program Integrity 400 West Robinson Street, Suite 309 South Tower, Hurston Building Orlando, Florida 32801 In accordance with Section 409.913, F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. Pursuant to the aforementioned provisions, failure to provide all Medicaid-related records in compliance with this request will result in the application of sanctions, which include, but are not limited to, fines, suspension and termination. The Medicaid-related records associated with this review should be retained until [the review is] completed. If you have any questions, please contact Victor Rivera, Investigator, at (407)420- 2524. At the bottom of the "enclosed printout" referenced in the letter was the following cautionary advisement: Please refer to your Assistive Care Services handbook, July 2009, for information on the required documentation for recipient files. The Certification of Completeness of Records form enclosed with the letter was identical to the Certification of Completeness of Records form that had accompanied the January 5 Letter. The January 19 Letter and accompanying documents were received by Respondent on January 21, 2012. Respondent, through its owner/administrator Angel Cox, responded to the records requests made in the January 5 and January 19 Letters by providing MPI with copies of numerous documents, along with two completed, signed, and dated Certifications of Completeness of Records (one for each records request), on January 24, 2012.6/ Ms. Cox supplemented this response by faxing additional copies to MPI on February 7, 2012. Victor Rivera, the MPI investigator to whom Respondent had been directed to send its responses to MPI's January 5, 2012, and January 19, 2012, records requests, reviewed the documentation that Ms. Cox had submitted and determined that the following Medicaid-related records that Respondent had been requested to produce in the January 5 and January 19 Letters were missing (hereinafter referred to collectively as the "Further Required Documentation"): written proof that D. S., an employee of Respondent's who had helped deliver services for which Respondent had billed the Florida Medicaid program from June 1, 2011, through December 1, 2011, under its Developmental Disabilities Home and Community-Based Medicaid Waiver services provider number, had completed the infection control and zero tolerance training required by the Developmental Disabilities Waiver Services Coverage and Limitations Handbook; and the annual health assessments required by the Assistive Care Services Coverage and Limitations Handbook for the four recipients of the services for which Respondent had billed the Florida Medicaid program from January 1, 2011, through November 30, 2011, under its assistive care services provider number. At all times material to the instant cases, Respondent had the Further Required Documentation in its possession,7/ however, Ms. Cox had inadvertently failed to include these documents in the submissions she made (on behalf of Respondent) in response to MPI's January 5 and January 19 Letters. Ms. Cox first learned that the Further Required Documentation was missing during a telephone conversation she had with Mr. Rivera at the end of March 2012, when he advised her of the omission and told her that she needed to get these documents to him "as soon as possible."8/ On April 1 or 2, 2012, no more than three or four days after this telephone conversation, Ms. Cox provided Mr. Rivera, by fax, with copies of the following: a certificate of completion issued by APD to employee D. S. on April 28, 2010, for "Zero Tolerance Training"; a certificate of completion issued by All Metro Health Care to employee D. S. for "Infection Control Guidelines" training completed on February 12, 2011; and a completed March 2011 annual health assessment recorded on AHCA Form 1823 (2011 Health Assessment Form) for each of the four recipients identified in the printout accompanying the January 19 Letter. Respondent also had in its possession the previous year's completed AHCA Form 1823 (2010 Health Assessment Form) for each of these recipients, but Ms. Cox did not fax copies of these forms9/ to Mr. Rivera because she reasonably believed that Mr. Rivera had asked only for the 2011 Health Assessment Forms.10/ MPI tries to "work with the [Medicaid] providers." If a provider is asked by MPI to provide, "as soon as possible," a specified document or documents previously requested but not produced and the provider, in response to such a follow-up request, produces the document(s) in question within a matter of days, it is MPI's practice to not impose any sanctions on the provider and, instead, to "move on to the next case."11/ In the instant cases, however, in an unexplained departure from that practice, MPI chose to issue the April 9, 2012, sanction letters set out above. It is these sanction letters that frame the issues to be resolved in these cases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration dismiss the allegations made against Respondent in the April 9, 2012, sanction letters issued in these cases and it not impose any sanctions against Respondent for the conduct alleged in these letters. DONE AND ENTERED this 21st day of February, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2013.
The Issue Did the Department of Children and Family Services (Department) improperly deny the in-home subsidy of $400.00 per month to Petitioner?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Medicaid Developmental Disabilities Home and Community-Based Services Waiver Program (Medicaid Waiver Program), the Family Care Program, and the provisions of in-home subsidies. Petitioner is a 30-year-old severely developmentally disabled woman who suffers from cerebral palsy and is totally blind. Petitioner is confined to a wheelchair, cannot care for herself, and is totally dependent on others for her care 24 hours a day. Petitioner lives with her mother and legal guardian, Jo Anne Weaver, and her stepfather, in the Weaver's home, which was purchased by the Weavers in March 2001, with a mortgage, after renting the home for three years. The Weavers have made modifications to the home to accommodate Petitioner's needs, including a ceiling lift that takes Petitioner from her bed, through the hall, and into her bathroom. Mr. Weaver is school teacher who works two nights a week in addition to daytime employment. Jo Anne Weaver sells advertising for the Jewish Press and earns $170.00 per week, plus $50.00 per week for expenses. In addition to the in-home subsidy, Petitioner receives assistance through the Department under the Medicaid Waiver Program, which allocates funds to provide Petitioner with in- home caregivers and other in-home services, such as companion services, personal care assistance, respite care, and consumable medical supplies. The funds under the Medicaid Waiver Program are paid directly to the caregivers and service providers and not to Petitioner or her guardian. The Medicaid Waiver Program, through a cost plan established and approved each year for Petitioner, allocates funds to provide a maximum of ten hours per day of caregiver services to Petitioner. Petitioner's family, primarily her mother and stepfather, provide uncompensated care to Petitioner the remaining 14 hours of each day. Petitioner's mother gets up several times each night to diaper Petitioner and to reposition her in the bed. Due to a number of factors, Medicaid Waiver Program services that have been approved under a support plan may not ultimately be received by the disabled person. Petitioner has never used all the funding allocated under her support plan. Although the Medicaid Waiver Program authorizes the provisions of funds for caregivers for 10 hours each day, Petitioner's mother has been unable to arrange consistently for caregivers to come to the home for the full 70 hours each week because it is very difficult to find, secure, and keep caregivers who will provide services under the terms of the Medicaid Waiver Program. In addition to the services authorized under the Medicaid Waiver Program, Petitioner has been, since 1995, receiving a monthly in-home subsidy of $400.00 per month in accordance with Section 393.0695, Florida Statutes. The in-home subsidy is paid from general revenue funds and is not part of Medicaid program, and is the only payment that Petitioner or the Weavers receive directly from the Department. However, Petitioner receives $74.00 per month Supplemental Security Income and $478.00 per month court-ordered support payment from her father. Additionally, Petitioner's father pays for her Blue Cross/Blue Shield health insurance coverage. The Weavers pay for Petitioner's out-of-pocket medical and dental expenses. Petitioner's Proposed Developmental Services Cost Plan (Support Plan) with a development date of December 15, 2000, shows a proposed cost of $87,518.96. This amount included a $400.00 per month ($4,800.00 per year) in-home subsidy for basic living necessities as set forth in Subsection 393.0695(2), Florida Statutes. At the time the proposed support plan was submitted, the average cost for institutional placement was $71,424.44. On August 27, 1999, the Department issued the Developmental Services Home and Community-Based Services, WAIVER CLARIFICATION P.D.#99-05 REV02, Waiver Cost Review Policy with an effective date of October 1, 1999 (Policy Directive), which stated in pertinent part as follows: Effective October 1, 1999, individuals with an annual average cost in excess of Intermediate Care Facilities for persons with Developmental Disabilities (ICF/DD) shall only be enrolled into the waiver if the Secretary of the Department approves an exception. . . If the total costs to support an individual in the community exceed the ICF/DD cost, the plan must be submitted for review and approval or denial before the individual is added to the waiver. . . . On December 29, 2000, in accordance with the above Policy Directive, Petitioner's Proposed Support Plan was submitted to the Department's Tallahassee office for review. On January 19, 2001, Susan Dickerson, Chief concurred in the recommendation to approve the Proposed Support Plan with the following exceptions: Other Adaptive Equipment and stroller repairs and adaptations should be determined as medically necessary before approval. Physical therapy approved only for the amount in excess of coverage by Medicaid state plan. Family subsidy for $400.00 of general revenue funds monthly is not approved. WSC should explore other less costly options for providing services including attending a day program. (Emphasis furnished) On January 23, 2001, a reconsideration of Susan Dickerson's decision was requested, and on February 15, 2001, Kathleen A. Kearney, Secretary, concurred in the earlier recommendation, which included the same exceptions. By a Notice of Denial of Requested Service Funded Through General Revenue dated March 8, 2001, the Department advised Petitioner that her request for in-house subsidy had been denied because "Medical necessity for this service had not been demonstrated as defined in Chapter 59G-1.010(166), Florida Administrative Code." (Emphasis furnished). There was no other reason offered, including the unavailability of funds for this service under existing appropriations, given by the Department for denying Petitioner's request for the in-house subsidy. The Department has not alleged that funds were unavailable to provide the in-house subsidy to Petitioner. The final cost approved for the support plan was $82,718.96. The Petitioner has demonstrated a need for the in-home subsidy in the amount requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order approving Petitioner's request for in-home subsidy in the amount of $400.00 per month. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2002. COPIES FURNISHED: Susan Haubenstock-Greenburg, Esquire Post Office Box 1588 Tampa, Florida 33601-1588 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B 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
