The Issue Whether Petitioner was overpaid by the Florida Medicaid Program and, if so, the amount of the overpayment.
Findings Of Fact At all times material to this proceeding, Respondent has been the state agency charged with responsibility for overseeing the Florida Medicaid Program, including the recovery of overpayments to Medicaid providers pursuant to Section 409.913, Florida Statutes. At all times material to this proceeding, Petitioner was an authorized Medicaid provider, having been issued provider number 377290000. Petitioner had valid Medicaid Provider Agreements with the Agency for Health Care Administration (AHCA) during the Audit Period, which began on January 1, 1996, and ended on May 10, 1999. Petitioner graduated from the University of Puerto Rico School of Medicine in 1987, did an internship at Tulane University, did a residency in internal medicine at Eastern Virginia Graduate Medical School, and did a fellowship in hematology at Washington Hospital Center. He served as Chief of Hematology for Kessler Medical Center in Biloxi, Mississippi, while serving in the United States Air Force (with the rank of major). At the time of the final hearing, Petitioner was licensed to practice medicine in Florida, Virginia, Puerto Rico, and Washington, D.C. At the time of the final hearing, Petitioner was employed by the National Institutes of Health (NIH) as a Medical Officer, Health Scientist Administrator. Petitioner served as an advisor to the director of the NIH on issues related to HIV (human immunodeficiency virus) and AIDS (acquired immunodeficiency syndrome). Petitioner’s specialty is internal medicine with a sub- specialty in hematology. Petitioner has extensive experience treating persons suffering with HIV and AIDS dating back to 1987. Pursuant to his Medicaid Provider Agreements, Petitioner agreed to: (1) retain for five years complete and accurate medical records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program; (2) bill Medicaid only for services or goods that are medically necessary; and (3) abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Respondent audited Petitioner’s Medicaid claims during the Audit Period and conducted a peer review of Petitioner’s billings and medical records of 25 of Petitioner’s patients as part of that audit.2 Joseph W. Shands, M.D., conducted the peer review of the documentation provided by Petitioner for purposes of the audit conducted by AHCA. Dr. Shands first reviewed documentation provided by Petitioner in 1999. He had no further participation in the audit until he reviewed information in preparation for his deposition in this proceeding. Dr. Shands graduated from medical school in 1956, trained in internal medicine, and worked as a microbiologist for approximately 15 years. He served as Chief of Infectious Diseases at the University of Florida for 23 years and also treated patients through the Alachua County Public Health Department and Shands Hospital at the University of Florida. Dr. Shands' practice was devoted almost entirely to the treatment of patients diagnosed with HIV/AIDS. Dr. Shands retired from the practice of medicine in May 2002. For three years prior to his retirement, Dr. Shands practiced medicine part-time. Petitioner was sent a Preliminary Agency Audit Report (PAAR) dated May 25, 1999, that found an overpayment in the amount of $862,576.72. In response to that PAAR, Petitioner had the attorney representing him at that time respond to AHCA in writing. The letter from the attorney, dated June 2, 1999, requested a copy of AHCA’s supporting materials and clarification of certain matters. AHCA did not respond. AHCA issued its FAAR on January 22, 2004, asserting that Petitioner was overpaid by the Florida Medicaid Program in the total amount of $261,336.14 for services that in whole or in part were not covered by Medicaid. There was no plausible explanation why the FAAR was not issued until 2004, whereas the audit period ended in 1999. The difference between the amount of the alleged overpayment reflected by the PAAR and the amount of the alleged overpayment reflected by the FAAR is attributable to the use of different methodologies in calculating the amounts overpaid. The FAAR used the correct methodology that was not challenged by Petitioner. The FAAR sets forth five categories of alleged overpayments. Each category accurately describes an overpayment based on applicable Medicaid billing criteria. The five categories are as follows: Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some service for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment. (For ease of reference, this will be referred to as Category I.) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. (For ease of reference, this will be referred to as Category II.) Medicaid policy addresses the type of pathology services covered by Medicaid. You billed and received payment for laboratory tests that were performed outside your facility by an independent laboratory. Payments made to you in these instances are considered overpayments. (For ease of reference, this will be referred to as Category III.) Medicaid policy requires the Medicaid services be provided by or under the personal supervision of a physician. Personal supervision is defined as the physician being in the building when the services are rendered and signing and dating the medical records within twenty-four hours of service delivery. You billed and received payment for services which your medical records reflect you neither personally provided nor supervised. Payment made to you for all or a part of those services is considered an overpayment. (For ease of reference, this will be referred to as Category IV.) Medicaid policy requires services performed be medically necessary for the diagnosis and treatment of an illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims which were considered medically unnecessary were disallowed and the money you were paid for these procedures is considered an overpayment. (For ease of reference, this will be referred to as Category V.) CATEGORY I CLAIMS The disputed Category I claims can be separated into two subcategories: services performed while an employee of a corporate employer and services performed while a recipient was hospitalized. As to both subcategories Petitioner argues that he has been prejudiced by Respondent’s delay in issuing the FAAR because Medicaid requires providers to retain medical records only for five years from the date of service.3 Although Respondent was dilatory in prosecuting this matter, Petitioner’s argument that Respondent should be barred (presumably on equitable grounds such as the doctrine of laches) should be rejected. Petitioner has cited no case law in support of his contention, and it is clear that any equitable relief to which Petitioner may be entitled should come from a court of competent jurisdiction, not from this forum or from an administrative agency. All billings for which there are no medical records justifying the services rendered should be denied. CATEGORY II CLAIMS The following findings as to the Category II claims are based on the testimony of the witnesses and on the information contained in the exhibits.4 Although nothing in the record prior to the final hearing reflects that position, Petitioner did not dispute most of the down-codings at the final hearing. Office visits, whether supported by a doctor’s note or a nurse’s note, for the sole purpose of administering IVIG treatment, will be discussed in the section of this Recommended Order dealing with Category V claims. The office visits, which were for the purpose of intravenous immunoglobulin (IVIG) treatment and for other reimbursable medical services, are set forth as part of the Category II disputes. The following findings resolve the Category II disputes. The date listed is the date the service was rendered. The billing code following the date is the billing code that is supported by the greater weight of the evidence. Recipient 1:5 01-20-98 99213 Recipient 2 09-27-96 99214 10-10-96 99213 11-13-96 99214 12-23-96 99212 02-24-97 99214 04-21-97 99213 04-28-97 99214 05-21-97 99213 06-02-97 99213 07-09-97 99213 07-23-97 99212 08-06-97 99213 08-11-97 99212 10-01-97 99213 10-10-97 99213 10-15-97 99214 10-21-97 99214 11-10-97 99213 12-08-97 99213 12-17-97 99213 12-29-97 99213 01-21-98 99213 Recipient 3 10-21-97 99213 11-04-97 99213 11-25-97 99213 12-16-97 99213 01-27-98 99214 02-26-98 99214 Recipient 4 01-03-98 99254 01-04-98 99261 01-05-98 99261 Recipient 5 09-29-97 99204 Recipient 6 11-11-97 99204 11-18-97 99213 Recipient 7 01-26-98 99204 02-23-98 99213 Recipient 8 09-26-96 99214 09-30-96 99213 10-03-96 99213 10-10-96 99212 10-25-96 99214 11-29-96 99213 12-04-96 99213 12-30-96 99213 01-22-97 99214 01-31-97 99211 02-14-97 99212 03-17-97 99214 04-04-97 99213 04-25-97 99212 05-30-97 99211 07-11-97 99213 08-08-97 99213 08-22-97 99213 09-05-97 99212 09-19-97 99214 10-31-97 99214 11-24-97 99214 12-03-97 99213 12-29-97 99213 01-09-98 99214 01-16-98 99213 01-30-98 99214 02-13-98 99214 Recipient 9 11-24-97 99203 Recipient 10 10-14-96 99205 11-04-96 99213 11-11-96 99213 11-25-96 99214 12-30-96 99213 01-27-97 99214 02-24-97 99214 03-10-97 99213 03-24-97 99212 04-07-97 99213 04-21-97 99214 05-05-97 99212 05-19-97 99213 05-21-97 Deny 06-09-97 99213 07-07-97 99212 08-04-97 99213 08-18-97 99213 09-24-97 992136 10-06-97 99213 10-10-97 99214 10-27-97 99213 11-10-97 99213 11-19-97 99214 11-24-97 99213 12-08-97 99213 02-02-98 99213 Recipient 11 06-30-97 99204 11-06-97 Recipient 12 Deny due to lack of documentation. 10-14-97 99213 11-06-97 99204 11-20-97 99213 12-16-97 99213 01-06-98 99213 Recipient 13 There are no Category II billings at issue for this Recipient. Recipient 14 There are no Category II billings at issue for this Recipient. Recipient 15 09-16-97 992157 Recipient 16 02-19-98 99212 Recipient 17 There are no Category II billings at issue for this Recipient. Recipient 18 There are no Category II billings at issue for this Recipient. Recipient 19 09-27-96 99212 10-01-96 99213 10-10-96 99213 10-23-96 99213 11-06-96 99213 11-20-96 99213 12-18-96 99211 12-30-96 Deny due to lack of 01-09-97 documentation. Deny due to lack of 01-22-97 documentation. 99211 02-05-97 99214 03-05-97 99214 03-19-97 99211 03-24-97 99214 03-26-97 04-02-97 Deny due to lack documentation. 99213 of 04-21-97 99213 05-05-97 99212 05-19-97 99213 06-02-97 99212 06-30-97 99213 07-07-97 99213 07-14-97 99213 07-28-97 99212 08-18-97 99213 08-25-97 99213 09-08-97 99213 09-15-97 99214 09-22-97 99213 10-28-97 99214 11-04-97 11-07-97 Deny due to lack documentation. 99213 of 11-24-97 99213 12-29-97 99213 01-12-98 99213 01-26-98 99213 02-19-98 99214 02-23-98 99213 Recipient 20 12-04-96 99204 12-13-96 99213 01-03-97 99213 01-17-97 99213 01-27-97 99213 02-07-97 99214 02-21-97 99213 03-07-97 99214 03-21-97 99212 04-04-97 99214 04-21-97 99212 05-06-97 99213 06-04-97 99213 06-13-97 99213 06-30-97 99213 07-14-97 99213 08-04-97 99213 01-19-98 99213 Recipient 21 04-29-97 99204 05-13-97 99214 05-16-97 99213 05-23-97 99212 06-09-97 99212 06-23-97 99212 07-11-97 99211 07-25-97 99213 08-11-97 99213 09-10-97 99213 11-05-97 99214 11-19-97 99213 12-22-97 99213 01-07-98 99214 01-21-98 99213 02-04-98 99213 Recipient 22 02-16-98 99205 02-20-98 99213 02-23-98 99213 Recipient 23 06-23-97 99215 10-02-97 992138 Recipient 24 There are no Category II billings at issue for this Recipient. Recipient 25 01-24-97 99213 02-07-97 99213 02-24-97 99212 03-10-97 99213 03-24-97 99212 05-05-97 99212 05-19-97 99212 06-02-97 99212 06-16-97 99212 07-14-97 99213 07-23-97 99212 07-28-97 99213 08-18-97 99213 08-25-97 99213 09-15-97 99213 10-01-97 99213 10-13-97 99213 10-27-97 99214 12-08-97 99213 12-22-97 99213 12-29-97 99213 01-13-98 99212 01-19-98 99214 02-02-98 99212 CATEGORY III As set forth in the Physician Coverage and Limitation Handbook (Respondent’s Exhibit 6), Petitioner is not entitled to billings for laboratory tests that were performed outside his facility by an independent laboratory. The only billing arguably in Category III is the billing for Recipient 1 on February 19, 1998. That billing should have been approved because it was for a urinalysis by dip stick or tablet that was administered and analyzed by Petitioner. It was not analyzed by an independent laboratory. CATEGORY IV All Category IV billings pertained to Petitioner’s supervision of his staff while patients were receiving treatments of IVIG. Those billings will be subsumed in the Category V billings discussion. CATEGORY V The alleged Category V overpayments relate to Petitioner’s IVIG treatment of Patients 2, 8, 10, 19, 20, 21, and 25, each of whom was an adult diagnosed with AIDS. In many of these cases a nurse administered the IVIG treatment. A dispute as to whether Petitioner properly supervised the nurse while he or she administered the IVIG treatment is moot because of the findings pertaining to the IVIG treatments set forth in Paragraphs 20 and 21. The Physician Coverage and Limitations Handbook requires that rendered services be medically necessary, as follows: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and the services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider. The use of IVIG in adult AIDS patients is not approved by the Federal Drug Administration (FDA). The use of a drug for a purpose other than the uses approved by the FDA is referred to as an “off-label” use. The off-label use of IVIG in adult AIDS patients is not effective either from a medical standpoint or from an economic standpoint. There was a conflict in the evidence as to whether any of the Recipients at issue in this proceeding had a medical condition or conditions other than AIDS that would justify the IVIG treatment administered by Petitioner. The following finding resolves that conflict. Utilizing applicable Medicaid billing criteria, the medical records produced by Petitioner fail to document that any of the Recipients at issue in this proceeding had a medical condition or conditions that warranted treatment with IVIG.9 All of Petitioner’s billings for IVIG treatments for Recipients 2, 8, 10, 19, 20, 21, and 25 were properly denied under the rationale of the FAAR’s Category V. Included in the billings that were properly denied were billings for office visits (whether documented by a doctor’s note or a nurse’s note) when the sole purpose of the office visit was the administration of an IVIG treatment.
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 adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the Final Order require that Petitioner repay the sum of the overpayment as determined by Respondent’s staff based on the Findings of Fact set forth in this Recommended Order. DONE AND ENTERED this 20th day of January, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 20th day of January, 2005.
Findings Of Fact The PROVIDER received the Final Audit Report that gave notice of PROVIDER'S right to an administrative hearing regarding the alleged Medicaid overpayment. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be WITHDRAWN and the administrative hearing case to be CLOSED. PROVIDER chose not to dispute the facts set forth in the Final Audit Report dated August 15, 2013. The facts alleged in the FAR are hereby deemed admitted, including the total amount of $14,569.69, which includes a fine sanction of $2,419.26. The Agency hereby adopts the facts as set forth in the FAR including the amount of $14,569.69 which is now due and owing, from PROVIDER to the Agency.
Conclusions THIS CAUSE came before me for issuance of a Final Order on a Final Audit Report (“FAR”) dated August 15, 2013 (C.1. No. 13-1386-000). By the Final Audit Report, the Agency for Health Care Administration (“AHCA” or “Agency”), informed the Respondent, Amwill Assisted Living, Inc., (hereinafter “PROVIDER’), that the Agency was seeking to recover Medicaid overpayments in the amount of $12,096.28, and impose a fine sanction of $2,419.26 pursuant to Sections 409.913(15), (16), and (17), Florida Statutes, and Rule 59G- 9.070(7)(e), Florida Administrative Code, and costs of $54.15 for a total amount of $14,569.69. The Final Audit Report provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the alleged overpayment. The PROVIDER filed a petition with the Agency requesting a formal administrative hearing on or about September 5, 2013. The Agency forwarded PROVIDER'S hearing request to the Division of Administrative Hearings (Division) for a formal administrative hearing. The Division scheduled a formal hearing for November 22, 2013. On November 12, 2013, the PROVIDER filed a Motion with the Administrative Law Judge, requesting AHCA vs. Amwill Assisted Living, Inc. (AHCA C.I, No.: 13-1386-000) Final Order Page 1 of 4 Filed January 2, 2014 10:59 AM Division of Administrative Hearings withdrawal of their Petition for Formal Hearing, and the Administrative Law Judge issued an Order Closing File on November 12, 2013, relinquishing jurisdiction of the case to the Agency.
The Issue The issues in this matter are whether Petitioner has shown that he is rehabilitated from his disqualifying offense; and, if so, whether a decision by the Agency for Health Care Administration to deny Petitioner’s request for an exemption from disqualification for Medicaid provider enrollment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a licensed radiologist seeking to reenroll as a Medicaid provider in Florida. To participate in the Medicaid program, health care providers apply to AHCA and must comply with the background screening standards set forth in section 435.04, Florida Statutes. AHCA is designated as the single state agency responsible for administering and overseeing the Medicaid program in the State of Florida. See §§ 409.902 and 409.913, Fla. Stat. AHCA is responsible for conducting background screenings for employees who provide specific types of services in health care facilities. This responsibility includes approving individuals who desire to enroll as Medicaid providers in order to render services to Medicaid recipients. See §§ 409.907 and 435.04(4), Fla. Stat. Petitioner has been licensed with the Florida Department of Health, Board of Medicine, since May 2005 (license number ME93275), and has remained in good standing since that date. Petitioner practices at Price, Hoffman and Stone, a radiological group located in St. Petersburg, Florida. Petitioner is part- owner of their radiology practice. From 2008 through December 2017, Petitioner was admitted into the Medicaid program through a ten-year Medicaid provider agreement with AHCA. Accordingly, Petitioner was authorized to receive reimbursement for covered services rendered to Medicaid recipients. During this time period, Petitioner treated Medicaid recipients in Florida. At the final hearing, AHCA did not express any concerns with Petitioner’s level of care during his decade long participation in the Medicaid program. Neither did AHCA present any evidence of complaints of abuse or negligence from the Medicaid patients Petitioner served. Petitioner’s Medicaid provider status expired in the fall of 2017. To continue his participation in the Medicaid program, Price, Hoffman and Stone applied to AHCA to renew Petitioner’s Medicaid provider credentials. Petitioner’s application required him to undergo the Level 2 background screening process established in section 435.04. See §§ 409.907(8) and 435.02, Fla. Stat. Petitioner’s background screening revealed a criminal offense. Specifically, on August 11, 2007, Petitioner was arrested for and charged with false imprisonment and battery. On or about September 26, 2007, Petitioner pled guilty to one charge of false imprisonment in violation of section 787.02, Florida Statutes (2007)(a felony of the third degree), as well as misdemeanor battery in violation of section 784.03, Florida Statutes (2007). The court accepted Petitioner’s guilty plea to battery and entered a verdict of guilty. The court withheld adjudication on the charge of false imprisonment. In September 2007, Petitioner was sentenced to three years of probation. He was also ordered to pay court costs, as well as perform 50 hours of community service. Petitioner completed his probation in January 2010. The Florida Board of Medicine also reviewed Petitioner’s criminal incident. Ultimately, after appearing before a disciplinary hearing, the Board of Medicine formally reprimanded Petitioner. Petitioner was also ordered to pay a $11,000 fine, as well as complete 100 hours of community service. In addition, Petitioner was directed to receive treatment from a psychiatrist in the Professionals Resource Network Program for a period of five years. However, the Board of Medicine allowed Petitioner to retain his medical license and continue the active practice of radiology in Florida. The fact that Petitioner is not currently an enrolled Medicaid provider does not prevent him from treating Medicaid recipients. Petitioner’s medical license is clear and active with the Florida Board of Medicine. Therefore, he may render radiological services to anyone in the State of Florida. However, because AHCA will not authorize Petitioner to participate in the Medicaid program, he cannot bill Medicaid for his medical services. See § 409.907, Fla. Stat. Under section 435.04(2)(m), Petitioner’s guilty plea to false imprisonment disqualifies him from participating as a Medicaid provider in any AHCA regulated facility. Consequently, in order to serve the Medicaid population, Petitioner requested an exemption from disqualification as authorized under section 435.07.4/ Petitioner submitted his application for exemption to AHCA on April 11, 2018. On June 15, 2018, after considering Petitioner’s Request for Exemption, AHCA issued a letter notifying him that it denied his application. As quoted in the letter, AHCA considered several factors, including, but not limited to: the circumstances surrounding the criminal incident for which an exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The letter did not contain any other details explaining the denial except to state that, based on these factors, AHCA found that Petitioner did not provide clear and convincing evidence of his rehabilitation. At the final hearing, Petitioner testified regarding how he is rehabilitated from his criminal background, and why he should be granted an exemption from disqualification. Petitioner initially described his current medical practice. He is a board-certified radiologist, with a subspecialty in musculoskeletal imaging. He works out of two offices in St. Petersburg and serves the greater Tampa Bay area. A large part of Petitioner’s practice is devoted to women’s diagnostic breast imaging, including mammographic, ultrasound, and MRI detection of breast cancer. Petitioner spends the majority of his time reading films and images. However, his practice occasionally calls for personal patient contact including the performance of biopsies, aspirations, and injections. Regarding the 2007 criminal offense, Petitioner described the facts and circumstances leading to his arrest and guilty plea to false imprisonment. Petitioner testified that the incident involved a woman he was dating at the time. One day, in his apartment, she revealed to him that she was actually married. Petitioner became intensely angry. He reacted physically. He “grabbed her and held her down on the bed and restrained her.” He cut off her clothes with scissors. He “got on top of her and wouldn’t let her go.” He yelled at her and tried to get answers from her. Petitioner then bound her hands and legs with tape. She remained confined on his bed for up to five hours. She eventually managed to free herself. She escaped his apartment and alerted law enforcement. Petitioner was promptly confronted and arrested. In asserting that he is rehabilitated from his disqualifying offense, Petitioner described a number of steps he has taken to better himself. Petitioner initially explained that, as part of his Professional Resource Network treatment for the Florida Board of Medicine, he twice traveled to Kansas to be evaluated by several psychologists and psychiatrists. Thereafter, he was required to attend weekly meetings with a local therapist for five straight years. In total, Petitioner has been assessed by at least four psychiatrists and mental health professionals since 2007. Petitioner represented that all have concluded that he presents no danger to the public or his patients. Petitioner further expressed that he has participated in (and continues to seek out) a number of continuing education courses focused on domestic violence and anger management issues. Petitioner declared that he has made a constant and determined effort to address how he responds to anger and controls his emotional impulses, as well as how he must respect others’ boundaries. In addition to his ongoing professional education, Petitioner testified that he has devoted significant energy to becoming a better person. For several years, he has volunteered every Saturday morning at The Spring of Tampa Bay, a domestic violence center for Hillsborough County. Petitioner also volunteers as a Little League coach, as well as with his church, which he attends regularly with his family. At the final hearing, Petitioner openly discussed the regret and shame he feels for his prior conduct. He readily acknowledged the emotional and physical impact his actions had on his former girlfriend. Petitioner stressed that he is extremely remorseful for his behavior. Petitioner urged that he takes full responsibility for his crime. Petitioner further testified that he has fully explained his criminal background on numerous occasions, including to his wife, at least four mental health counselors, the Florida Board of Medicine, the Missouri Medical Board, the Nevada Medical Board, numerous private insurance companies, the American Board of Radiology, as well as his partners at his radiologic clinic. Petitioner insisted that he has always been candid and honest with AHCA when describing the incident. No evidence indicates that Petitioner has been arrested, charged, convicted, or otherwise involved in any criminal activity since 2007. At the final hearing, Petitioner offered the testimony of several individuals to support his Request for Exemption. Petitioner first called Brent Price, M.D., with whom Petitioner practices at Price, Hoffman and Stone in St. Petersburg. Dr. Price also specializes in radiology. Dr. Price hired Petitioner at their radiology clinic in 2007. Dr. Price testified that Petitioner is an intelligent and skilled doctor. He has never seen Petitioner act unprofessionally or endanger a patient in the 12 years they have worked together. On the contrary, Dr. Price described Petitioner’s interactions with patients as “impeccable.” Dr. Price relayed that Petitioner personally informed him of his criminal history shortly after Petitioner started working at their clinic. Dr. Price stated that he could have fired Petitioner at that moment (or, at any time thereafter), but he believes in second chances. Therefore, he decided to provide Petitioner a path to partnership. Dr. Price maintained that he has never seen Petitioner not be remorseful for his past criminal conduct. Dr. Price also articulated that Petitioner’s inability to bill Medicaid for his services places a significant burden on their practice. Currently, their clinic must schedule Medicaid recipients in a manner that allows them to see a doctor who can charge for his or her treatment. This process can delay medical care for the patient. Petitioner presented the testimony of Dr. Gregory Carney, a fellow radiologist, as well as a close personal friend. Dr. Carney has known Petitioner for about 14 years. Dr. Carney supervised Petitioner during his fellowship at the University Diagnostic Institute through the University of South Florida. Dr. Carney described Petitioner as an “excellent,” “even-keeled,” “insightful,” and “very competent” doctor. He further relayed that he has watched Petitioner interact with many, many patients. He is not aware of anyone who was ever in danger in Petitioner’s care. On the contrary, Dr. Carney asserted that Petitioner is extremely good with patients and adept at making them feel at ease. Cheryl Wieder testified in support of Petitioner. Ms. Wieder is a radiologic technologist who has worked for Petitioner’s radiology clinic for 32 years. She first met Petitioner when he joined the clinic, 12 years ago. Petitioner is her supervisor. Ms. Wieder estimated that she and Petitioner have treated approximately 3,000 patients together. Regarding Petitioner’s character and demeanor, Ms. Wider expressed that Petitioner is “amazing” with patients. She described him as “calming,” “reassuring,” and “very caring.” She has never seen Petitioner angry or act unprofessionally at the clinic. On the contrary, Ms. Wider voiced that Petitioner’s compassion and empathy towards his patients has helped numerous women navigate their fight against breast cancer. Ms. Wieder declared that Petitioner is the best radiologist in their community. Ms. Wieder learned of Petitioner’s criminal incident from Dr. Price shortly after he started with Price, Hoffman and Stone. However, she insisted that she has never seen any patient placed at risk in Petitioner’s care. Ms. Wieder further stated that whenever Petitioner meets with a patient, without exception, he has a technologist present in the room with him. Finally, Ms. Wieder disclosed that Petitioner personally diagnosed and treated her for breast cancer. She proclaimed that Petitioner saved her life. Finally, Petitioner’s wife, Lina Goodrum, testified on behalf of her husband. Ms. Goodrum stated that she met Petitioner in 2009, and they have been happily married since 2012. They have two children. Ms. Goodrum expressed that Petitioner fully explained his past to her. He never hid the details of his crime from her, and he is very remorseful for his actions. Ms. Goodman further conveyed that she has never felt threatened by him. Ms. Goodrum urged that her husband is a kind, patient, and good father. She believes that he has learned from his mistakes. Ms. Goodrum also relayed that Petitioner is involved in a strong peer group. At the final hearing, AHCA presented several individuals who were involved in its review of Petitioner’s application to explain AHCA’s procedures for background screenings and requests for exemptions for enrollment in the Medicaid program. AHCA first called Vanessa Risch who currently serves as AHCA’s Operations and Management Consultant Manager. As part of her duties, Ms. Risch supervises AHCA’s background screening unit. Her unit reviews background screenings for all persons seeking eligibility to become Medicaid providers. The background screening unit handles approximately 150 files at any one time, per month. Ms. Risch initially relayed that the Secretary of AHCA, as its agency head, is the sole approval authority for all requests for exemption submitted to AHCA. (Justin Senior was AHCA Secretary at the time Petitioner submitted his request for exemption.) However, before the Secretary grants or denies a request for exemption, Ms. Risch’s section reviews and gathers information on each application. Ms. Risch explained that when a background screening reveals that an applicant has a “disqualifying offense” under section 435.04, AHCA’s first step is to issue a disqualification letter notifying the applicant that he or she is not eligible for Medicaid provider enrollment. The letter also informs the applicant of their right to request an exemption from the disqualifying offense. Regarding Petitioner, AHCA sent him a disqualifying letter in or around October 2017. Thereafter, AHCA offers to conduct a telephonic hearing during which the applicant has the opportunity to explain the facts and circumstances surrounding the disqualifying offense. In this matter, at Petitioner’s request, AHCA conducted a teleconference on June 12, 2018. Ms. Risch led the discussion using a standard set of questions. She was joined by Shanita Council, a Health Care Services and Facilities Consultant for AHCA, as well as Antonia Lozada, an AHCA attorney. Petitioner’s legal counsel participated with Petitioner over the phone. Although Ms. Risch did not offer a recommendation to Secretary Senior regarding Petitioner’s application, at the final hearing she disclosed that, after speaking with Petitioner during the teleconference, she believed that he was remorseful for his past criminal conduct. Shanita Council testified regarding her role in AHCA’s review of Petitioner’s request for exemption. Ms. Council was the exemption analyst AHCA assigned to process Petitioner’s application. Ms. Council explained that Petitioner’s request for exemption was initially received through the AHCA clearinghouse, and assigned for processing. After she received Petitioner’s application, she reviewed it to ensure that his documentation was complete. Thereafter, because Petitioner’s crime was considered a “serious offense,” she personally set up the teleconference with Petitioner and his legal counsel. After the teleconference, Ms. Council completed an Exemption Decision Summary. Ms. Council described this document as a summary of the application information, which could later be reviewed by the AHCA Secretary. Thereafter, she forwarded Petitioner’s entire exemption case file, through Samantha Heyn, to Secretary Senior for final determination. Ms. Council expressed that she made no recommendation on the Exemption Decision Summary regarding whether Petitioner’s application should be granted or denied. As with Ms. Risch, following the teleconference, Ms. Council did not have the impression that Petitioner was not remorseful for his past actions, or that he was not honest or forthcoming during the teleconference. Samantha Heyn, AHCA’s Senior Management Analyst Supervisor, “staffed” Petitioner’s request for exemption application with Secretary Senior. Ms. Heyn explained that Petitioner’s case file included a number of documents for Secretary Senior to review. This information included Ms. Council’s Exemption Decision Summary, worksheets from the teleconference, as well as written notes from the background screening staff. Ms. Heyn, in line with Ms. Risch and Ms. Council, was careful to explain that AHCA’s background screening staff does not make any recommendations whether to approve or deny an application. The Secretary is the sole decision-maker regarding whether a request for exemption is granted. Ms. Heyn met with Secretary Senior weekly to review pending exemption requests. Each meeting was scheduled to last an hour during which the Secretary would review approximately 30 to 35 applications on average. Ms. Heyn took Petitioner’s request for exemption to Secretary Senior in June 2018. During their meeting, Ms. Heyn recalled that Secretary Senior reviewed the Exemption Decision Summary and asked her several questions about Petitioner’s application. Ms. Heyn also relayed that, although the teleconference was recorded, Secretary Senior did not listen to the audio recording. Thereafter, Secretary Senior informed Ms. Heyn that he was denying Petitioner’s request. Secretary Senior did not explain the basis for his decision. He commented, however, that Petitioner could reapply with the next AHCA Secretary. Justin Senior was Secretary of AHCA in June 2018. (He departed AHCA in January 2019.) As Secretary, he made the decision to deny Petitioner’s application for exemption from disqualification. At the final hearing, Mr. Senior testified that, to the best of his recollection, he denied Petitioner’s exemption request based on “a combination of factors.” These factors included the lack of time that had elapsed between the offense and the date of review (approximately ten years). Mr. Senior was also alarmed at the seriousness of Petitioner’s crime. Mr. Senior expressed that the fact that Petitioner “kidnapped a woman and bound her to a bed, [had] taken her clothes off and held her for an . . . undetermined period of time” was a significant factor in his consideration. Mr. Senior further stated that Petitioner included several remarks on his application which indicated to him that Petitioner did not regard “his offense as particularly serious.” Mr. Senior based this conclusion on Petitioner’s comments that he did not “serve any jail time” and paid a “nominal” fine, as well as a psychological evaluation wherein Petitioner described his crime as “a mild degree of physical assault that he shouted at her for an hour.” Pet. Ex. 23 and 25. To Mr. Senior, Petitioner seemed to be making light of the crime. Neither did Petitioner appear adequately remorseful based on his written application. In describing his standard practice, Mr. Senior explained that he had no set criteria for approving or denying a request for exemption. However, the two most noteworthy factors he considered were the seriousness of the offense and the time that had passed since the offense. Mr. Senior added that he considered himself fairly lenient in granting exemption requests. He rarely denied an application. In Petitioner’s case, however, the circumstances surrounding Petitioner’s particularly “memorable” crime cast serious doubts on his rehabilitation. Consequently, after reviewing Petitioner’s explanation, as well as the information included in the application, Mr. Senior determined that Petitioner had failed to present clear and convincing evidence of rehabilitation. After denying Petitioner’s request for exemption, Mr. Senior returned Petitioner’s application to Ms. Heyn for processing. On June 15, 2018, AHCA issued a letter notifying Petitioner that it denied his Request for Exemption. Upon careful consideration of the evidence presented at the final hearing, the undersigned finds that Petitioner demonstrated, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense. The credible and earnest testimony from Petitioner, Dr. Price, Dr. Carney, Ms. Wieder, and Ms. Goodrum unquestionably establishes that Petitioner is now a responsible person who is rehabilitated from his 2007 criminal offense. Further, Petitioner has provided radiologic services to his community for over 12 years (ten of those years as a Medicaid provider) without any evidence of abuse or unprofessionalism. Petitioner clearly proved that he will not present a danger to any Medicaid recipients he treats. Further, as more fully addressed below, the undersigned concludes that if AHCA were to deny Petitioner’s Request for Exemption on this record, and refuse to allow Petitioner to reenroll as a Medicaid provider, such denial would constitute an abuse of discretion. Therefore, Petitioner has met his burden of demonstrating that AHCA should grant his Request for Exemption from Disqualification under section 435.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order granting Petitioner’s request for an exemption from disqualification from enrollment in the Medicaid program. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 9th day of September, 2019.
The Issue Whether Petitioner's Medicaid Waiver Services Agreement should be terminated with cause by Respondent Agency for Persons with Disabilities.
Findings Of Fact The Agency for Health Care Administration ("AHCA") is Florida's designated Medicaid agent pursuant to chapter 409, Florida Statutes. In that role, AHCA has delegated duties with respect to the MWSA to Agency for Persons with Disabilities ("APD" or "Respondent"). APD ensures that Medicaid waiver providers comply with applicable Medicaid rules. To ensure compliance, APD enters into a MWSA with providers to facilitate payment. AHCA pays the providers for services rendered according to the MWSA. On April 22, 2015, Petitioner entered into a MWSA with Respondent. As a qualified provider, the MWSA allowed Petitioner to perform services for APD clients and get paid through the Medicaid program by reimbursement. Section I.B. of the MWSA provides: Prior to executing this Agreement and furnishing any waiver services, the Provider must have executed a Medicaid Provider Agreement with the Agency for Health Care Administration (AHCA), and be issued a Medicaid provider number by AHCA. The Provider must at all times during the term of this Agreement maintain a current and valid Medicaid Provider Agreement with AHCA, and comply with the terms and conditions of the Medicaid Provider Agreement. On or about August 3, 2017, AHCA terminated Petitioner's Medicaid Provider Agreement and notified Petitioner by letter that "Medicaid will no longer pay for claims for reimbursement for goods or services that you furnish." APD investigated AHCA's termination and concluded that Petitioner did not comply with section I.B. of the MWSA that required Petitioner to maintain a current and valid Medicaid Provider Agreement with AHCA. On October 5, 2017, by letter, APD terminated Petitioner's MWSA pursuant to section III.B., which provides Petitioner's "agreement may be terminated for the Provider's unacceptable performance, non-performance or misconduct." APD's letter detailed the basis for Petitioner's termination as follows: Provider's Medicaid Provider Number was terminated by the Agency for Health Care Administration (AHCA) on September 2, 2017. Therefore, the Provider is not performing in accordance with the MWSA, Section I., B., which requires that "The Provider must at all times during the term of this Agreement, maintain a current and valid Medicaid Provider Agreement with AHCA, and comply with the terms and conditions of the Medicaid Provider Agreement. At hearing, Petitioner admitted that Respondent terminated the MWSA when APD became aware of ACHA's termination. Petitioner also acknowledged that Miracles House, Inc., has been unable to bill since ACHA suspended its services, but Whipple is contesting ACHA's actions. On or about October 27, 2017, Petitioner challenged APD's termination and timely requested a formal hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order terminating Petitioner's Medicaid Waiver Services Agreement. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 23rd day of May, 2018. COPIES FURNISHED: Adres Jackson-Whyte, Esquire 10735 Northwest 7th Avenue Miami, Florida 33168 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation. The parties are directed to comply with the terms of the attached Stipulation. Based on the foregoing, this file is CLOSED. DONE AND ORDERED anise 7Aay of Llu , 2014, in Tallahassee, Leon County, Florida. eS ZA K, les: Agency for Health{Care Administration Page 1 of 3 Filed March 27, 2014 4:47 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Advocates For Opportunity 5975 W. Sunrise Blvd., Suite 217 Plantation, Florida 33313-6813 Agency for Health Care Administration Douglas J. Lomonico, Assistant General Counsel, MS #3 Agency for Health Care Administration Bureau of Finance and Accounting, MS #14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 ATTN: Rick Zenuch, Bureau Chief Health Quality Assurance (E-mail) Page 2 of 3 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced _——— addressees this%& Clay ot _Yre L200. . SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Fax No. (850)-921-0158 Page 3 of 3 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 13-3378MPI Provider No. 6711324-98 ADVOCATES FOR OPPORTUNITY, C.I. No. 13-1717-000 Respondent. JOINT STIPULATION OF DISMISSAL The AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter *AHCA™ or “Agency”), and ADVOCATES FOR OPPORTUNITY (hereinafter “PROVIDER”), by and through the undersigned, hereby stipulate and agree to the following: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, operating under Provider Number 6711324-98. 3. In its Final Audit Report, C.1. Number 13-1717-000, (the “Audit Letter" or “FAR”), dated July 30, 2013, AHCA notified PROVIDER that AHCA was seeking to recoup an alleged overpayment in the amount of $2,053.94 and audit costs estimated at the time to amount to $54.22. The FAR also sought to impose an administrative fine in the amount of $410.78 for an alleged violation of Fla, Admin. Code Rule 59G-9.070(7)(e). The total amount sought by the Agency in the FAR was $2,518.94. 4, In response, on or about August 29, 2013, PROVIDER filed with AHCA a Page | of 5 C.1. No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal petition for a formal administrative hearing, which was forwarded to the Division of Administrative Hearings (DOAH), and therein challenged the findings contained within the FAR. 5. On or about September 18, 2013, PROVIDER and AHCA jointly filed a Motion to Relinquish Jurisdiction with DOAH in order to pursue resolution of this case short of a formal administrative proceeding. 6. On or about September 19, 2013, the Administrative Law Judge entered an order granting the parties’ Motion to Relinquish Jurisdiction and the case was referred back to AHCA. 7. Both parties stipulate and agree that as a resolution of all disputed issues in this cause, each party shall dismiss and rescind its cause of action. AHCA has agreed to dismiss its Final Audit Report, C.J. No. 13-1717-000. PROVIDER has agreed to dismiss its Petition for a Formal Administrative Hearing. 8. Both PROVIDER and AHCA agree that this joint stipulation of dismissal resolves and settles this case completely and releases both parties from any administrative or civil liabilities arising from the findings relating to the claims as referenced in audit C.1, No.13-1717- 000. 9. The parties agree to bear their own attorney’s fees and costs, if any. 10. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11. All parties agree that a facsimile signature suffices for an original signature. Page 2 of 4 C.L No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. Both AHCA and PROVIDER expressly waive in this matter their rights to any hearing pursuant to §§120.569 or 120.57, Fla. Stat., the making of findings of fact and conclusions of law by DOATI and the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding C.I. No. 13-1717-000 and any and all issues raised herein. PROVIDER further agrees that the Agency should issue a Final Order which is consistent with the terms of this Joint Stipulation of Dismissal, and which adopts this agreement and closes this matter as to AHCA C.1. No. 13-1717-000. 14. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives. and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to AHCA CI. No. 13-1717-000; and AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, by or on behalf of PROVIDER. 15. This Stipulation and Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 16. All times stated herein are of the essence in this Stipulation and Agreement. 17. This Stipulation and Agreement shall be in full force and effect upon cxecution by the respective parties in counterpart. Page 3 of 4 C.I. No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal ADVOCATES FOR OPPORTUNITY BY: NAME (Print): Deborah Wicks Kahn TITLE: Director Date:_October 24 __, 2013 AGENCY FOR HEALTH CARE ADMINISTRATION 2 727 Mahan Drive Mail Stop #3 Tallahassee, FL 32308 Page 4 of 4 oA ERIC W. MIZLER ral Inspector Ger General Counsel vate. 3/14 uf By: _| . —— Zooupiia ~LOMONICO Assistant General Counsel a _ Date: Peboy lo oo (Page 1 of °8) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION: RICK SCOTT ELIZABETH DUDEK GOVERNOR Better Health Care for all Fioridians SECRETARY GOVERNOR Tree sere me mer ere SECRETARY FEDERAL EXPRESS MAIL No.: 8029 1875 9208 July 30, 2013 Provider No: 6711324 98 NPI No: N/A License No.: N/A ADVOCATES FOR OPPORTUNITY 5975 W. SUNRISE BLVD. STE. 217 PLANTATION, FL 33313-6813 In Reply Refer to FINAL AUDIT REPORT CI. No. 13-1717-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period January 1, 2008 through December 31, 2011. A preliminary audit report dated April 10, 2013 was sent to you indicating that we had determined you were overpaid $2,053.94. Based upon a review of all documentation submitted, we have determined that you were overpaid $2,053.94 for services. Since no documentation was produced to refute these billings, all the claims are considered overpayments. We have determined that you were overpaid $2,053.94 for services that in whole or in part are not covered by Medicaid. A fine of $410.78 has been applied. The cost assessed for this audit is $54.22, The total amount due is $2,518.94. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (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. This letter shall serve as notice of the following sanction(s): e A fine of $410.78for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. Visit AHCA online at http://ahea.myflorida.com 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 (Page 2 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 2 The Medicaid program is authorized by Title XIX of the Social Security Act and Title 42 of the Code of Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter 59G, F.A.C. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S, In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks (in accordance with Chapter 59G, F.A.C.), billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) A Medicaid Provider is required to comply with Medicaid policy requirements (e.g. laws, rules, regulations, handbooks, policy), These requirements include, but are not limited to, providing goods and services in accordance with provisions of Medicaid policy and retaining medical, financial, and business records pertaining to the goods and services furnished. This review included a review of your claims reimbursed to you by Medicaid for goods and services to determine compliance with Medicaid policy. Payments for goods or services that are not documented and/or not billed in accordance to Medicaid policy are deemed to be overpayments. Our review has determined that you have failed to comply with Medicaid policy as outlined below. * Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid Nursing Home Diversion Waiver Program. Medicaid providers are required to verify Medicaid recipient eligibility prior to rendering Medicaid services. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient’s Nursing Home Diversion Waiver Provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check the total amount reflected on page one, paragraph one, of this letter which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit Teport. Please mail payment to: (Page 3 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 3 Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Miranda Hunt, Investigator, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. Sincerely, has Fante Program Administrator Office of Inspector General Medicaid Program Integrity PF/MH/SG Enclosure(s) Copies furnished to: Finance & Accounting Health Quality Assurance (Interoffice mail) (E-mail) (Page 4 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes, Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 TaHahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The reauest must be legible, on 8 % by 11-inch white paper, and contain: Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. For a request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal] hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. (Page 5 of:8) Nursing Home Diversion Waiver — Fee for Service Match Page 5 If you are in agreement with this audit and wish to make payment, please return If you are in agreement with this audit and wish to make payment, please return this form along with your check. Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name ADVOCATES FOR OPPORTUNITY Provider ID 6711324 98 MPI Case Number 13-1717-000 Overpayment Amount | $2,053.94 Fine Amount $410.78 Costs Assessed $54.22 Total Amount Due $2,518.94 Check Number Payment for Medicaid Program Integrity Audit (Page 6 of 8) @1OZ/SZ/TL —:a1eG Woday ELESONSEZOTZZ © S6OETS TYNOISS33OHd - EO6TSVES GH Z1069 aiaz/zz/at O10@/zZ2/0T €b 6Er" TS OFOZ/OT ONT NV WOIGIN YVAN SOGLEOSO OTOZ/tE/OT oroz/sTft ot ALEOSYSEE ‘ [ mnouydes, | eam paien de [owen sapmctadey wade | wpa welder | _prvemmesuen | S6OETS , SvNonsaiGua We | £06 Tare H ; TT ote} ‘TeEsoossz0izz Ey 6eR'tS OTOZ/60 ONE NVId TYIOGYN UNYIANH nonetaeee OTOL/OENG DOC 7 O&LISTERE ‘_Bnoury dey. | WRU palanon dey” | SUNN FPO CED [ rspvasa de | pu bukg de dl wifag wih dey | ‘Plucgpesuel | ——_——i " $6QETS TWNOISS330ud - EETISOHS 6a 21065 otoz/ters atoe/tehe “S@s9tOLzaTIzz 09°005'TS OT.02/80 _ONINVTA WOH SVAN 906T20STO. 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The Issue The issues in this case are whether Petitioner received Medicaid overpayments, and, if so, what is the aggregate amount of the overpayments.
Findings Of Fact The Parties Respondent, the Agency for Health Care Administration, is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner, The Doctor's Office, was a Florida corporation approved by the Agency to provide group Medicaid services. At all times relevant to this matter, Petitioner was owned entirely by non-physicians who employed salaried physicians to provide Medicaid services. Petitioner, at all times relevant to this matter, offered physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 371236P-00. Petitioner, pursuant to the specific terms in the contract with the Agency, agreed to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and Federal laws and regulations. Petitioner, pursuant to its contract with the Agency, agreed to only seek reimbursement from the Medicaid program for services that were "medically necessary" and "Medicaid compensable." The Audit In mid-1996, the Agency, pursuant to its statutory responsibility, advised Petitioner that it intended to audit Petitioner's paid Medicaid claims for the alleged medical services it provided between July 1, 1994 and June 30, 1996. In September 1996, the Agency conducted an initial audit site visit, and randomly selected 61 patient files for review. The complete patient files, provided by Petitioner, were reviewed by Sharon Dewey, a registered nurse consultant and Agency employee, as well as Dr. Solenberger, a physician consultant and Agency employee. In accordance with its procedure, the Agency determined that Petitioner had submitted a total of 580 claims for reimbursement relating to the 61 patient files and had received full payment from the Medicaid program for each claim. On March 3, 1997, the Agency issued a Preliminary Agency Audit Report (PAAR), and advised Petitioner that it had over-billed Medicaid and received an overpayment from the program. Shortly thereafter, the Agency auditors, Dr. Solenberger and Ms. Dewey, met with Frank Colavecchio, Petitioner's Corporate Representative, and discussed the Medicaid violations alleged in the review. During the meeting, the Agency requested Mr. Colavecchio to instruct Petitioner's staff physicians to review their records and provide a written rebuttal to the Agency's initial determinations. Within days, and prior to any further action, the Agency placed the audit on indefinite hold. The Agency decided to delay the audit until certain proposed legislation relating to peer review and the integrity of the Medicaid reimbursement program was enacted. Two years later, Section 409.9131, Florida Statutes, was enacted during the 1999 legislative session and became law. Shortly thereafter, in 1999, the Agency hired Dr. Larry Deeb, a board-certified, practicing pediatrician, to perform a peer review of Petitioner's practices and procedures. Dr. Deeb has performed similar medical records reviews for the Medicaid program since 1981 and possesses a thorough understanding of CPT coding and the EPSDT requirements. Dr. Deeb received the medical files provided by Petitioner, and reviewed each patient file in the random sample, including the medical services and Medicaid-related claim records. On November 11, 1999, Dr. Deeb completed his peer review of 564 of the 580 claims provided in the random sample and forwarded his findings to the Agency. Dr. Deeb advised the Agency that 16 reimbursement claims involved adult patients and he therefore did not review them. Utilizing Dr. Deebs findings, the Agency employed appropriate and valid auditing and statistical methods, and calculated the total Medicaid overpayment that Petitioner received during the two year audit period. On July 17, 2000, approximately four years after the original audit notification, the Agency issued its Final Agency Audit Report (FAAR). The Agency advised Petitioner that, based upon its review of the random sample of 61 patients for whom Petitioner submitted 580 claims for payment between 1994 and 1996, Petitioner received $875,261.03 in total overpayment from the Medicaid program during the audit period. Petitioner denied the overpayment and requested a formal administrative hearing. Following the initial commencement of the final hearing in this matter in December 2001, Dr. Deeb, again, reviewed the disputed claims and modified his opinion relating to 6 claims. Thereafter, the Agency recalculated the alleged overpayment and demanded Petitioner to pay $870,748.31. The Allegations The Agency alleges that specific claims submitted by Petitioner, which were paid by the Medicaid program, fail to comply with specific Medicaid requirements and therefore must be reimbursed. Since its inception, the Medicaid program has required providers to meet the Medicaid program's policies and procedures as set forth in federal, state, and local law. To qualify for payment, it is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with . . . state . . . law." Section 409.913(5)(e), Florida Statutes (1993). Medicaid manuals are available to all Providers. Petitioner, as a condition of providing Medicaid services pursuant to the Medicaid program, is bound by the requirements and restrictions specified in the manuals, and under the contract, is required to reimburse the Medicaid program for any paid claims found to be in violation of Medicaid policies and procedures. The evidence presented at hearing established that Petitioner frequently violated various Medicaid policies and procedures. First, Petitioner repeatedly failed to comply with Section 10.9 of the Medicaid Physician's Provider Handbook, (MPPH), and Sections 409.905(9), 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp. 1995, and 1996), Florida Statutes, which require all medical services to be rendered by, or supervised by a physician, and attested to by the physician's signature. Medical records reflecting services for paid claims must be physician signature certified and dated, or the services are not defined as physician's services. In addition, Petitioner routinely failed to correctly document the provision of certain physician's assistant (P.A.) Medicaid services that require the personal supervision of a physician or osteopath. See Chapter 1 of the Physician Assistant Coverage and Limitations Handbook, March 1995, and Appendix D (Glossary) in the Medicaid Provider Reimbursement Handbook, HCFA-1500 (HCFA-1500). In addition, Petitioner failed to comply with Medicaid regulations that require an approved physician to be present in the facility when certain P.A. services are delivered and to attest to it by signature within twenty-four hours of service. See Section 11.1 of the MPPH, effective July 1994, and Sections 409.905, and 409.913 (1993, 1994 Supp., 1995, and 1996 Supp.), Florida Statutes. The evidence presented at hearing also demonstrates that Petitioner repeatedly violated specific record keeping requirements located in Section 10.9 of the MPPH, Sections 10.6 and 11.5 of the Medicaid EPSDT Provider Handbook (EPSDT), and Sections 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp., 1995, and 1996), Florida Statutes. In addition, the Agency demonstrated that Petitioner occasionally failed to document support for the necessity of certain services or simply billed for services that were not medically necessary. As indicated, Medicaid policy limits a physician to bill only for services that are medically necessary and defines the circumstances and varying levels of care authorized. In fact, Section 11.1 of the MPPH, effective July 1994, provides in part: The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law . . . . The services in this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of all services in this handbook must be done by or under the personal supervision of a physician or osteopath . . . at any place of service . . . . Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. The manual further provides clear guidelines defining authorized services for reimbursement which Petitioner apparently overlooked. For example, the manual defines the four types of medical history exams that Medicaid providers may conduct, the nature of the problems presented, and the appropriate and authorized tests. The manual also identifies the varying degrees of medical decision-making complexity related to Medicaid services and provides instructions relating to the method of selecting the correct evaluation and management code for billing. Petitioner consistently violated coding restrictions. Moreover, the Medicaid policy manual also outlines the specific procedures and billing requirements necessary for seeking payment for medical services including the early periodic screening for diagnosis and treatment (EPSDT) services. Chapter 10 and 11 of the MPPH specifically state that services that do not include all listed components of the EPSDT are not defined as an EPSDT, and upon audit, the Agency re-calculated Petitioner's medical services at the appropriate procedure code. Stipulation Prior to the commencement of the hearing, the parties stipulated that certain paid claims were correctly determined by the Agency to be overpayments. Specifically, the parties agreed that portions of samples 1, 3, 14, 21, 28, 41, 46, 47, 51, 53, and 56 could not be claimed for reimbursement since lab services which are part of an office visit reimbursement and/or lab service fees performed by an independent outside lab are not permitted. In addition, the parties agreed that specific portions of samples 1, 13, 14, 27, 28, 33, 35, 43, 46, 47, 52, 53, and 55 could not be claimed since Modifier 26 billing, the professional component, is only appropriate when the service is rendered in a hospital and Petitioner's services were rendered in an office. Pediatric Sample With regard to the random sample of pediatric files, upon careful review, the evidence presented at hearing sufficiently demonstrates that Petitioner was overpaid the following amounts on the following paid claims for the following reasons: The prolonged physician's services billed to Medicaid were not documented as having been provided or medically necessary. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 1 1/18/1996 99354 $ 36.64 1 5/14/1996 99354 $ 36.64 13 9/25/1995 99354 $ 36.64 19 9/28/1994 99354 $ 39.50 21 12/18/1995 99354 $ 36.64 28 3/06/1995 99354 $ 36.64 42 6/04/1996 99354 $ 36.64 43 12/19/1994 99354 $ 36.64 47 9/28/1994 99354 $ 39.50 47 10/17/1995 99354 $ 36.64 51 4/05/1995 99354 $ 36.64 53 11/02/1995 99354 $ 36.64 56 5/01/1996 99354 $ 36.64 The level of care billed to and reimbursed by Medicaid at the 99215 office visit procedure code level was improper since the level of care provided was at the 99213 office visit procedure code level. Cluster Number Date of Service Overpayment 1 9/14/1995 $ 34.14 1 1/18/1996 $ 34.14 1 5/14/1996 $ 34.14 33 9/28/1994 $ 20.00 47 10/17/1995 $ 34.14 The level of care billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99214 office visit procedure code level. Cluster Number Date of Service Overpayment 53 5/31/1995 $ 21.69 The level of care billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 25 7/27/1994 $ 2.00 The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99203 office visit procedure code level. Cluster Number Date of Service Overpayment 35 5/11/1995 $ 37.96 51 12/08/1994 $ 15.00 55 11/21/1995 $ 37.96 58 9/22/1995 $ 37.96 The level of care that was billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 43 12/11/1994 ($ 3.00) credit The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the medical services provided and documentation supported an EPSDT visit. Cluster Number Date of Service Overpayment 53 2/06/1995 $ 16.53 The required components of the EPSDT were not documented as being performed at the office visit that had been claimed and paid as an EPSDT and therefore, the difference between the EPSDT payment received and the value of the procedure code for the documented level of office visit that occurred (i.e., 99214, 99213, 99212, 99211, or 99203), is deemed an overpayment. Cluster Number Date of Service Level of Visit Overpayment 1 7/28/1995 99213 $ 39.82 3 6/28/1995 99213 $ 39.82 5 3/03/1995 99203 $ 21.43 6 7/07/1994 99213 $ 5.00 10 8/17/1995 99212 $ 43.82 12 1/31/1996 99204 $ 0.00 14 5/31/1995 99213 $ 39.82 18 10/04/1994 99213 $ 5.00 18 1/29/1996 99214 $ 27.37 20 8/25/1994 99213 $ 5.00 21 12/11/1995 99214 $ 27.37 29 8/17/1994 99212 $ 9.00 Cluster Number Date of Service Level of Visit Overpayment 29 9/06/1995 99213 $ 39.82 40 7/25/1994 99203 $ 0.00 41 5/06/1996 99214 $ 27.37 46 9/19/1994 99213 $ 5.00 46 10/19/1995 99213 $ 39.82 47 11/02/1994 99213 $ 5.00 51 9/07/1995 99213 $ 39.82 53 7/10/1995 99213 $ 39.82 53 1/19/1995 99213 $ 39.82 59 5/02/1996 99203 $ 43.39 Adult Samples At hearing, Petitioner disputed all of the Agency's findings relating to patients over the age of 21 and objected to Dr. Deeb, a pediatrician, performing any review of their files. While Dr. Deeb is not the appropriate peer to review adult patient files, the following adult claims did not require substantive peer review and resulted in overpayment due to the stated reason: There were not any medical records in existence to indicate that any medical services were performed. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 2 2/20/1995 99215 $ 53.00 2 7/11/1995 99215 $ 59.14 2 8/09/1995 99215 $ 57.14 2 9/07/1995 99213 $ 23.00 2 10/11/1995 99213 $ 23.00 2 1/02/1996 99213 $ 23.00 2 3/22/1996 73560/Rad.Ex. $ 16.36 2 4/01/1996 99215 $ 57.14 2 4/05/1996 99213 $ 23.00 2 4/23/1996 99213 $ 23.00 15 2/16/1996 99213 $ 23.00 15 2/19/1996 99215 $ 57.14 16 5/14/1996 Blood Count $ 8.00 Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 16 5/14/1996 UA $ 3.00 16 5/14/1996 99215 $ 57.14 23 7/28/1994 99213 $ 23.00 23 5/09/1995 72069/26 Rad.Ex. $ 6.98 23 5/09/1995 72069/Rad.Ex. $ 17.45 23 10/20/1995 99213 $ 23.00 34 4/24/1996 99214 $ 35.45 57 11/17/1995 99215 $ 59.14 60 4/10/1996 99215 $ 57.14 61 5/22/1995 99213 $ 23.00 The medical records failed to contain the required physician's signature and date authenticating the fact that the services billed were performed by either P.A. Olsen or P.A. Avidon under physician supervision. The services provided by the non-physician employee were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Cluster Number Date of Service Proc. Code Pd./ P. Code Allowed Overpayment 2 6/30/1995 99215/99212 $ 36.14 2 7/20/1995 99215/99213 $ 34.14 2 7/28/1995 99215/99213 $ 34.14 2 9/05/1995 99215/99212 $ 36.14 8 4/17/1995 99205/99203 $ 35.96 17 3/27/1995 99205/99203 $ 35.96 23 5/09/1995 99215/99213 $ 32.14 23 6/09/1995 99215/99213 $ 32.14 34 4/23/1996 99205/99203 $ 35.96 The medical records failed to contain the required physician signature authenticating the fact that the services were provided by a physician. The services provided were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Procedure Code Cluster Number Date of Service Billed and Paid Overpayment 2 6/14/1995 99215/99211 $ 45.14 16 5/15/1996 99215/99211 $ 45.14 61 5/05/1995 99205/99204 $ 14.53 The provider improperly sought payment for lab services that were part of the office visit reimbursement and/or lab services performed by an independent outside lab. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 3/08/1996 UA $ 3.00 2 4/03/1996 UA $ 3.00 15 2/08/1996 UA $ 3.00 16 5/15/1996 Blood Count $ 8.50 16 5/15/1996 Blood Count $ 8.00 The provider improperly sought payment for Modifier 26 billings (professional component) which are only appropriate when the service is rendered in a hospital. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 2/17/1995 Radiologic exam $ 6.98 2 6/14/1995 Radiologic exam $ 7.20 8 4/17/1995 Tympanometry $ 9.00 16 5/13/1996 Radiologic exam $ 5.45 16 5/15/1996 Radiologic exam $ 6.98 In addition to the policy and procedural violations, Petitioner, in egregious violation of the Medicaid program, admittedly submitted Medicaid claims for the services of specialist physicians (such as an allergist, OB/GYN, podiatrist, psychologists, and ophthalmologists) not within its Provider group, collected Medicaid funds based on those claims, and reimbursed the respective specialist. While Petitioner's corporate representative, Mr. Colavecchio, was admittedly responsible for the coding and billing of the Medicaid services submitted for reimbursement, he was minimally aware of the Medicaid policy requirements and possessed limited working knowledge of CPT coding and EPSDT billing. In addition, Petitioner's employees, Dr. Keith Wintermeyer and Dr. Marcia Malcolm, were only moderately familiar with the CPT coding and EPSDT component requirements. They provided little input to Petitioner regarding CPT coding and the sufficiency of certain physician's services relating to EPSDT billing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency re-calculate the overpayment consistent with the Findings of Fact, and include only those identified violations in the cluster samples of the adult patient files, and issue a Final Order requiring Petitioner to reimburse, within 60 days, the Agency for the Medicaid overpayments plus any interest that may accrue after entry of the Final Order. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 14th day of February, 2003. COPIES FURNISHED: Susan Felker-Little, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Charles D. Jamieson, Esquire Ward, Damon & Posner, P.A. 4420 Beacon Circle West Palm Beach, Florida 33407 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The issues are whether Petitioner received a Medicaid overpayment for claims paid during the audit period, August 1, 1997, through August 25, 1999, and if so, what is the amount that Petitioner is obligated to reimburse to Respondent.
Findings Of Fact Respondent is the agency responsible for administering the Florida Medicaid Program. One of its duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients. Petitioner is a licensed psychiatrist and an authorized Medicaid provider. His Medicaid provider number is No. 048191200. Chapter Three of the Limitations Handbook describes the procedure codes for reimbursable Medicaid services that physicians may use in billing for services to eligible recipients. The procedure codes are Health Care Financing Administration Common Procedure Coding System (HCPCS), Levels 1-3. The procedure codes are based on the Physician's Current Procedural Terminology (CPT) book, published by the American Medical Association. The CPT book, includes HCPCS descriptive terms, numeric identifying codes, and modifiers for reporting services and procedures. The Limitations Handbook further provides that Medicaid reimburses physicians using specific CPT codes. The CPT codes are listed on Medicaid's physician fee schedule. The CPT book includes a section entitled Evaluation and Management (E/M) Services Guidelines. The E/M section classifies medical services into broad categories such as office visits, hospital visits, and consultations. The categories may have subcategories such as two types of office visits (new patient and established patient) and two types of hospital visits (initial and subsequent). The subcategories of E/M services are further classified into levels of E/M services that are identified by specific CPT codes. The classification is important because the nature of a physician's work varies by type of service, place of service, and the patient's status. According to the CPT book, the descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. They are history, examination, medical decision making, counseling, coordination of care, nature of presenting problem, and time. The most important components in selecting the appropriate level of E/M services are history, examination, and medical decision making. However, since 1992, the CPT book has included time as an explicit factor in selecting the most appropriate level of E/M services. At all times relevant here, Petitioner provided services to Medicaid patients pursuant to a valid Medicaid provider agreement. Therefore, Petitioner was subject to all statutes, rules and policy guidelines that govern Medicaid providers. The Medicaid provider agreement clearly gives a Medicaid provider the responsibility to maintain medical records sufficient to justify and disclose the extent of the goods and services rendered and billings made pursuant to Medicaid policy. This case involves Respondent's Medicaid audit of claims paid to Petitioner for Medicaid psychiatric services during the audit period August 1, 1997, through August 25, 1999 (the audit period). Petitioner provided these services to his Medicaid patients, which constituted approximately 85 to 90 percent of his practice, at his office and at hospitals in the Jacksonville, Florida, area. During the audit period, Petitioner billed Medicaid for services furnished under the following CPT codes and E/M levels of service: (a) 99215, office or other outpatient visit for the evaluation and management of an established patient; (b) 99223, initial hospital care per day for the evaluation and management of a patient; (c) 99232, subsequent hospital care per day for the evaluation and management of a patient; (d) 99233, subsequent hospital care per day for the evaluation and management of a patient; (e) 99238, hospital discharge day management; (f) 99254, initial inpatient consultation for a new or established patient; and (g) 90862, other psychiatric service or procedures, pharmacologic management. Except for CPT code 90862, the E/M levels of services billed by Petitioner require either two or all three of the key components as to history, examination, and medical decision- making. The CPT book assigns a typical amount of time that physicians spend with patients for each level of E/M service. The CPT book contains specific psychiatric CPT codes. CPT codes 90804-90815 relate to services provided in the office or other outpatient facility and involve one of two types of psychotherapy. CPT codes 90816-90829 relate to inpatient hospital, partial hospital, or residential care facility involving different types of psychotherapy. CPT codes 90862- 90899 relate to other psychiatric services or procedures. CPT code 90862 specifically includes pharmacologic or medication management; including prescription, use, and review of medication with no more than minimal medical psychotherapy. CPT code 90862 is the only psychiatric procedure code that Petitioner used in billing for the psychiatric services he provided. CPT code 90862 does not have specific requirements as to history, examination, and medical decision-making or a specified amount of time. Most of Petitioner's hospital patients were admitted to the hospital for psychiatric services through the emergency room. As part of the admission process, Petitioner performed psychiatric and physical examinations. However, testimony at hearing that Petitioner generally performed the psychiatric evaluations and the physical examinations on separate days is not persuasive. The greater weight of the evidence indicates that the hospital physical examinations were conducted as part of the routine admission process and appropriately included in claims for the patients' initial hospital care. Some of Petitioner's hospital patients had complicated conditions. Some patients required crisis intervention and/or lacked the ability to perform activities of daily living. The initial hospital care of new hospital patients required Petitioner to take an extensive medical and psychiatric history. Petitioner attended his hospital patients on a daily basis. However, there is no persuasive evidence that Petitioner routinely spent 20-25 minutes with his hospital patients for each subsequent daily visit until the day of discharge. Petitioner used a team approach when attending his hospital patients. On weekdays, the team consisted of Petitioner, a social worker, a music therapist, and the floor nurses. On weekends, Petitioner generally made his rounds with the floor nurses. Petitioner's use of the team approach to treat hospital patients did not change the level of service he provided in managing their medication. Petitioner did not document the time he spent with patients during hospital visits. However, his notations as to each of these visits indicate that, excluding admissions and discharges, the hospital visits routinely involved medication management. Petitioner's testimony that his treatment during subsequent hospital visits involved more than mere medication management is not persuasive. Petitioner also failed to document the time he spent with patients that he treated at his office. He did not present his appointment books as evidence to show the beginning and ending time of the appointments. Petitioner's notes regarding each office visit reflect a good bit of thought. However, without any notation as to time, the office progress notes are insufficient to determine whether Petitioner provided a level of service higher than medication management for established patients. Petitioner and his office manager agreed in advance that, unless Petitioner specified otherwise, every office visit for an established patient would be billed as if it required two of the following: a comprehensive history; a comprehensive examination; and a medical decision making of high complexity. With no documented time for each appointment, Petitioner's records do not reflect that he provided a level of service higher than medication management for the office visits of established patients. Petitioner's testimony to the contrary is not persuasive. Petitioner treated some patients at their place of residence in an adult congregate living facility (ACLF). Respondent does not pay for psychiatric services in such facilities. Instead of entirely denying the claims for ACLF patients, Respondent gave Petitioner credit for providing a lower level of service in a custodial care facility. Sometime in 1999, Respondent made a decision to audit Petitioner's paid claims for the period of time at issue here. After making that decision, Respondent randomly selected the names of 30 Medicaid patients that Petitioner had treated. The 30 patients had 282 paid claims that were included in the "cluster sample." Thereafter, Respondent's staff visited Petitioner's office, leaving a Medicaid provider questionnaire and the list of the 30 randomly selected patients. Respondent's staff requested copies of all medical records for the 30 patients for the audit period. Petitioner completed the Medicaid questionnaire and sent it to Respondent, together with all available medical records for the 30 patients. The medical records included Petitioner's progress notes for office visits. Petitioner did not send Respondent all of the relevant hospital records for inpatient visits. The original hospital records belonged to the hospitals where Petitioner provided inpatient services. Petitioner had not maintained copies of all of the hospital records even though Medicaid policy required him to keep records of all services for which he made Medicaid claims. When Respondent received Petitioner's records, one of Respondent's registered nurses, Claire Balbo, reviewed the records to determine whether Petitioner had provided documentation to support each paid claim. Ms. Balbo made handwritten notes on the records of claims that were not supported by documentation. Ms. Balbo reviewed the documentation in the records between February 10, 2000, and March 7, 2000. Next, one of Respondent's investigators, Art Williams, reviewed the records. Mr. Williams made his review on or about January 23, 2001. In some instances, Mr. Williams changed some of Petitioner's CPT codes from an inappropriate hospital inpatient or office visit procedure code to a psychiatric procedure code with a lower reimbursement rate. Additionally, Mr. Williams noted Petitioner's visits in ACLF's that, according to Medicaid policy, were not reimbursable. Finally, Mr. Williams noted that Petitioner occasionally made several claims on one line of the claim form contrary to Medicaid policy. Mr. Williams made these changes to the CPT codes based on applicable Medicaid policy. His review of the audit documents and patient records did not involve a determination as medical necessity or the appropriate level of service. A peer reviewer makes determinations as to medical necessity and the appropriate level of service for each paid claim in the random sample of 30 patients. Respondent then sent the records to Dr. Melody Agbunag, a psychiatrist who conducted a peer review of Petitioner's records. Dr. Agbunag's primary function was to determine whether the services that Petitioner provided were medically necessary and, if so, what the appropriate level of service was for each paid claim. Dr. Agbunag conducted the peer review between June 8, 2001, and August 29, 2001. She agreed with Respondent's staff regarding the adjustments to the procedure codes that corresponded with the level of service reflected in the medical records. When Dr. Agbunag returned the records to Respondent, Ms. Balbo calculated the monetary difference between the amount that Medicaid paid Petitioner for each claim and the amount that Medicaid should have paid based on Dr. Agbunag's review. The difference indicated that Respondent had overpaid Petitioner for claims that in whole or in part were not covered by Medicaid. Respondent sent Petitioner a Preliminary Agency Audit Report (PAAR) dated December 27, 2001. The PAAR stated that Petitioner had been overpaid $54,595.14. The PAAR stated that Petitioner could furnish additional information or documentation that might serve to reduce the overpayment. Petitioner responded to the PAAR in a letter dated February 28, 2001. According to the letter, Petitioner challenged the preliminary determinations in the PAAR and advised that he was waiting on additional patient records from a certain hospital. In a letter dated June 30, 2002, Petitioner advised Respondent that he generally spends 15-20 minutes with his hospital inpatients. The letter does not refer to any additional hospital records. Petitioner's office manager sent Respondent a letter dated August 1, 2002. The letter discusses every service that Petitioner provided to the 30 patients during the audit period. Some of these services were not included in the random "cluster sample" because Medicaid had not paid for them during the audit period. According to the August 1, 2002, letter, Petitioner's office manager attached some of the patient records that Petitioner had not previously provided to Respondent. The additional documentation related to multiple claims involving several of Petitioner's hospital and office patients. Sometime after receiving the additional documentation, Dr. Agbunag conducted another peer review. She did not change her prior determination regarding the level of service as to any paid claim. In 2003, Vicki Remick, Respondent's investigator, reviewed the audit, the patient records, and all correspondence. Her review included, but was not limited to, the determination of the appropriate CPT code and amount of reimbursement, taking into consideration Medicaid policy and Dr. Agbunag's findings regarding medical necessity and the level of care for each paid claim. On or about October 1, 2003, Respondent issued the Final Agency Audit Report (FAAR). The FAAR informed Petitioner that he had been overpaid $39,055.34 for Medicaid claims that, in whole or in part, were not covered by Medicaid. The FAAR included a request for Petitioner to pay that amount for the overpayment. The FAAR concluded, as to some patients, that Petitioner's documentation did not support the CPT codes that Petitioner used to bill and that Respondent used to pay for services. Thus, Respondent "down graded" the billing code to a lesser amount. As a result, the difference between the amount paid and the amount that should have been paid was an overpayment. The FAAR also stated that Petitioner billed and received payment for some undocumented services. In each such instance, Respondent considered the entire amount paid as an overpayment. The FAAR indicated that Petitioner billed Medicaid for some services at acute care hospital psychiatric units without documenting the medical records as to the appropriate CPT codes and medical illness diagnosis codes. Respondent adjusted the payments for these services to the appropriate psychiatric CPT codes. According to the FAAR, Petitioner billed and received payment for services which only allowed one unit of service per claim line. For this audit, Respondent allowed charges for the additional units of service where Petitioner's documentation for the additional dates of service supported the services allowed by the peer reviewer. The FAAR stated that Petitioner billed for psychiatric services at an ACLF or an assisted living facility. Medicaid normally does not pay for such services. However, in this case, Respondent adjusted the claims to a domiciliary or custodial care visit. Sometime after Petitioner received the FAAR, Petitioner sent Respondent some additional patients' medical records. Some of the records were duplicates of documents that Petitioner previously had furnished to Respondent. Other records were for services that may have been provided during the audit period but which were not a part of the random sample because Medicaid did not pay for them during relevant time frame. Respondent requested Dr. James R. Edgar to conduct a second peer review of Petitioner's correspondence and patient records to determine the appropriate level of service. Respondent provided Dr. Edgar with a copy of the patients' medical records, a copy of Respondent's worksheets, including Dr. Agbunag's notes, and the appropriate policy handbooks. Respondent requested Dr. Edgar to make changes in the level of service as he deemed appropriate. Dr. Edgar performed his review between July 25, 2004, and July 29, 2004, making an independent determination regarding issues of medical necessity and level of care. Initially, as to every disputed paid claim, Dr. Edgar agreed with Dr. Agbunag that Petitioner's patient records were insufficient to justify the procedure code and higher level of service claimed by Petitioner. Specifically, Dr. Edgar presented persuasive evidence that a number of paid claims, which Petitioner billed under CPT codes 99215, 99223, 99232, 99233, and 99238, were properly adjusted to CPT code 90862. Petitioner was not entitled to bill at a higher level of reimbursement because he failed to adequately document as to history, examination, medical decision-making, and time. Dr. Edgar agreed that, upon reconsideration, Petitioner's claim for Recipient 14, date of service September 7, 1998, billed under CPT code 99238, was appropriate. As to Recipient 1, date of service March 9, 1999, Petitioner was not entitled to bill for services using CPT code 99255, initial inpatient consultation for a new or established patient. CPT code 99222, initial hospital care, per day, for the E/M of a new or established patient, was more appropriate because Petitioner provided the consultation for one of his established patients. His services included a comprehensive history, a comprehensive examination, and medical decision making of moderate complexity. An independent analysis of the selection of the random sample, the statistical formula used by Respondent, and the statistical calculation used to determine the overpayment, confirms the conclusions in the FAAR. The greater weight of the evidence indicates that Respondent properly extrapolated the results from the sample to the total population. Out of a population of 222 recipients and a population of 2,123 claims, 30 recipients selected at random with 282 paid claims capture most of the characteristics of the total population. In this case, the statistical evidence indicates that 29 of the 30 recipients had overpayments. The odds that 29 out of 30 randomly selected recipients would have overpayments, if no overpayments existed, are greater than the odds of winning the Florida Lotto Quick Pick three weeks in a row. In fact, within a statistical certainly, the amount claimed in this cause based on the records of 30 recipients is lower than the reimbursement amount that Petitioner would owe if all records were reviewed. Respondent incurred costs during the investigation of this matter. The amount of those costs was not known at the time of the formal hearing.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner owes Respondent for an overpayment in the amount of $39,055.34, less an adjustment for the September 7, 1998 claim for Recipient 14, plus interest. DONE AND ENTERED this 25th day of March, 2005, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2005. COPIES FURNISHED: Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Know Building III 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Debora E. Fridie, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. 117 South Gadsden Street Post Office Box 1049 Tallahassee, Florida 32302
The Issue The issue is whether the Department's Access Policy Manual Sections 1840.0906.04 and 1840.0906.07 (Policy Manual); Training Module 4 (Training Module 4); Request for Veteran's Information Form CF-ES 2262 (Form CF-ES 2262); and Common Nursing Home and Waiver Medicaid Terminology (Medicaid Terminology) constitute agency statements defined as rules but not adopted as such, in violation of section 120.54, Florida Statutes.
Findings Of Fact Petitioner is a resident of an assisted living facility and receives a stipend under the Florida Medicaid Nursing Home Diversion Program. The program is one of the Medicaid "home and community-based services waiver" programs administered through DCF. In order to qualify for the Assisted Living Waiver Program, applicants must comply with level of care, income and asset limitations. For example, eligible individuals may not have a monthly income greater than $2,022.00. The agency statements under challenge in this proceeding relate to the manner in which DCF calculated Petitioner's income in evaluating eligibility under the AL Waiver Program. Section 409.919, Florida Statutes, requires DCF to adopt and accept transfer of any rules necessary to carry out its responsibilities for receiving and processing Medicaid applications and determining Medicaid eligibility. Respondent has adopted Florida Administrative Code Rule 65A-1.713 relating to SSI-Related Medicaid Income Eligibility Criteria. This rule requires DCF to follow the exclusionary policies specified in 20 C.F.R. § 416.1100, including exclusionary policies regarding Veterans Administration (VA) benefits such as VA Aid and Attendance, unreimbursed medical expenses (UME) and reduced VA improved Pensions (VAIP) to determine what counts as income and what is excluded from income for eligibility determinations. Rule 65A-1.713, provides in relevant part: (2) Included and Excluded Income. For all SSI-related coverage groups the department follows the SSI policy specified in 20 C.F.R. 416.1100 (2007) (incorporated by reference) et seq., including exclusionary policies regarding Veterans Administration benefits such as VA Aid and Attendance, unreimbursed Medical Expenses, and reduced VA Improved pensions, to determine what counts as income and what is excluded as income with the following exceptions: In-kind support and maintenance is not considered in determining income eligibility Exclude total of irregular or infrequent earned income if it does not exceed $30 per calendar quarter. Exclude total of irregular or infrequent unearned income if it does not exceed $60 per calendar quarter. Income placed into a qualified income trust is not considered when determining if an individual meets the income standard for ICP, institutional Hospice program or HCBS. Interest and dividends on countable assets are excluded, except when determining patient responsibility for ICP, HCBS and other institutional programs. On or about August 3, 2010, Petitioner applied to DCF for re-certification to participate in the AL Waiver Program. On August 10, 2010, DCF issued a notice to Petitioner's designated representative that Petitioner needed to provide a copy of a qualified income trust statement and a bank account for the trust, since her combined income from Social Security and the amount she was receiving from the VA exceeded the income limit of $2,022.00. On August 27, 2010, DCF issued a notice to Petitioner that she was no longer eligible for the Medicaid Diversion Program because "her income is too high to qualify for the program and they did not receive all information necessary to determine eligibility." Petitioner timely requested a Medicaid Fair Hearing because she disagreed with the way her income was evaluated by DCF. The Fair Hearing was held on December 1, 2010. At the Fair Hearing, representatives of DCF referenced the Policy Manual, Training Module and Medicaid Terminology in explaining what policy required DCF to count payments received from the VA in determining eligibility for the AL Waiver Program. Shawnee T. Daniels, a DCF manager with supervisory responsibility for DCF case workers, testified at Petitioner's Fair Hearing. When asked if DCF employees could exercise independent thought or judgment in evaluating applications, Ms. Daniels stated that DCF case workers rely on DCF policy and knowledge from their training materials and information they receive from their clients in making determinations about eligibility. Petitioner has challenged Respondent's Access Policy Manual Sections 1840.0906.04 and 1840.0906.07 as unpromulgated rules. Those sections provide: 1840.0906.04 Veterans Administration Improved Pension (MSSI, SFP) The Veterans and Survivors Pension Improvement Act changed the method of determining the pension payable and pension rates effective January 1979, but the new rates of payment are not automatic. Since the new rates are not automatic, the veteran or survivor who was receiving benefits prior to January 1979 must apply to VA to establish entitlement under the Act. All individuals who apply for or receive Medicaid benefits must apply for the Veterans Administration Improved Pension Program (VAIP). An individual who receives a VA pension under the old law must apply for improved pension under the new law unless the individual's VA benefit would be lowered under the improved pension. If an individual's pension would be lower under the improved pension, he may continue to receive the pension under the old law. VAIP includes allowances for aid and attendance, housebound, and unreimbursed medical expenses. Section 8003 of the Omnibus Budget Reconciliation Act of 1990 (OBRA '90) provides for a reduction in Veterans Administration Improved Pensions (VAIP) for single veterans and surviving spouses residing in Title XIX nursing facilities who have no dependents and who are Medicaid eligible. The pension will be reduced to $90 or less per month, which is all considered aid and attendance and is not counted as income for the eligibility determination. Also, it's not added back into the patient responsibility. However, if the veteran is enrolled in the Medically Needy Program in the nursing home and Medicaid is not paying for nursing home care, the veteran is entitled to the full VA benefit, and must apply to receive it. 1840.0906.07 VA Unreimbursed Medical Expenses (MSSI, SFP) This policy does not apply to OSS. VA provides an allowance for unreimbursed medical expenses (UME) incurred by the veteran that exceed five percent of an individual's annual income. UME is excluded income. Respondent has stipulated that Access Policy Manual sections 1840.0906.04 and 1840.0906.07 meet the definition of a "rule" as that term is defined in section 120.52(16), Florida Statutes (2010). (Joint Pre-hearing Stipulation, p. 5; Respondent's Proposed Final Order, p. 2). Respondent also stipulated that as an agency statement meeting the definition of a rule, DCF was required to go through the rule promulgation process required by section 120.54(1), and has not done so. (Joint Pre-Hearing Stipulation, p. 1, 5). Request for Veteran's Information Form CF-ES 2262 is a form used to gather information about pensions and other benefits provided by the VA to applicants for the Medicaid AL Waiver Program. The form itself is addressed to the "Department of Veterans Affairs" and requires verification from a VA representative. The bottom of the form includes a footer reading "CF-ES 2262, PDF 10/2005", indicating that this version of the form was developed in October, 2005. Respondent has stipulated that Form CF-ES 2262 meets the definition of a "rule" as that term is defined in section 120.52(16), Florida Statutes (2010). (Joint Pre-hearing Stipulation, p. 5; Respondent's Proposed Final Order, p. 2). Respondent also stipulated that as an agency statement meeting the definition of a rule, DCF was required to go through the rule promulgation process required by section 120.54(1), and has not done so. (Joint Pre-Hearing Stipulation, p. 1, 5). Respondent has stipulated that Petitioner is substantially affected by DCF's use of Access Policy Manual sections 1840.0906.04 and 1840.0906.07 and Form CF-ES 2262. (Respondent's Proposed Final Order, p. 2). Training Module 4 is a tool used to train DCF employees, and describes the duties of DCF employees who determine public assistance eligibility. It is used by DCF employees in carrying out their assigned job duties. Training Module 4 contains a section entitled "Policy: Identify Income from the Veterans Administration" found at pages I-49 through I-51. On page I-49 of Training Module 4 appears the following statement: Only the following types of Veterans' benefits are excluded as income for all programs: Reductions in basic pay while in active duty service or selected reserve service to provide for future basic educational assistance Payments to a natural child of a Vietnam veteran born with spina bifida, except spina bifida occulta, as a result of the exposure of one or both parents to Agent Orange Payments to a natural child of a woman Vietnam veteran born with one or more birth defects resulting in permanent physical or mental disability Payments for aid and attendance, housebound allowance or unreimbursed medical expenses (except OSS) Page I-51 of Training Module 4 contains a section entitled "Manual Citation", in which there are references to "On- Line Policy Manual" sections. Among those citations are section 1840.906.05 entitled "VA Improved Pension", and section 1840.906.08 entitled "VA Un-reimbursed Medical Expenses". Notwithstanding the single digit difference in the numbering of these two sections from the numbering in the Policy Manual, given the identical titling of the sections it is reasonable to conclude that these are a reference to Policy Manual Sections 1840.0906.04 and 1840.0906.07.1 Respondent stipulated that Training Module 4 contains agency statements of general applicability and describes the practice or procedure requirements of the agency. Respondent also acknowledges that Training Module 4 has not been adopted as a rule. (Joint Pre-Hearing Stipulation, P. 3). However, Respondent denies that Training Module 4 meets the definition of a rule. "Common Nursing Home and Waiver Medicaid Terminology" contains definitions of numerous terms used in administering the Medicaid program. Within the section entitled "Other SSI-Related Medicaid Terminology" appears the terms: Aid and Attendance (VA AA) is a special Veterans Administration allowance for individuals who require the constant aid and attendance of another person to help with personal needs. Most often this allowance is paid to persons in a nursing facility. VA AA payments do not count in the Medicaid eligibility test or post-eligibility budget, but do count in State Funded Programs. and, Un-reimbursed Medical Expense (UME) is a term used by the Veterans Administration for medical expenses they recognize as a factor in computing pension amounts. VA UME is not counted in the Medicaid eligibility test or post-eligibility budget, but it counts for State Funded Programs. The document bears a footer on each page which reads "CCC Vocabulary Helps/Updated 12/05/06". Medicaid Terminology is a tool that is used to train DCF employees to perform their job and describes how agency policy should be applied in any given situation. When asked during the Fair Hearing what the DCF policy was regarding VA unreimbursed medical expenses, DCF Medicaid Specialist for the Policy Unit of the Suncoast Region, Naureen Yazdani read the above definition of UME as set forth in the Medicaid Terminology document. Respondent stipulated that the Medicaid Terminology contains agency statements of general applicability and interprets or prescribes law or policy. Respondent also acknowledges that the Medicaid Terminology has not been adopted as a rule. (Joint Pre-Hearing Stipulation, P. 3). However, Respondent denies that the Medicaid Terminology meets the definition of a rule. Respondent received actual notice of the rule challenge petition on December 23, 2010, more than 30 days prior to the filing of the petition at the Division of Administrative Hearings on January 28, 2011. Pursuant to the Governor's Executive Order 11-01, dated January 4, 2011, all rulemaking by executive agencies, including DCF, was suspended pending approval from the newly created Office of Fiscal Accountability and Regulatory Reform. As of the date of the hearing Respondent had not received approval from OFARR to engage in rulemaking addressed to any of the challenged agency statements.2/ Although Respondent concedes that the challenged provisions of the Policy Manual and Form CF-ES 2262 meet the statutory definition of a rule, Respondent contends that rulemaking addressed to the challenged statements is not feasible or practicable. However, aside from the lack of approval from OFARR to proceed with rulemaking, Respondent has not offered evidence in this record to establish that rulemaking addressed to the challenged statements is not feasible or practicable.
