The Issue Whether Petitioner, Agency for Health Care Administration (AHCA or Petitioner), is entitled to a recoupment for a Medicaid overpayment to Respondent, Humane Minority, Inc. (Humane or Respondent), in the amount of $177,581.26.
Findings Of Fact Petitioner is the state agency responsible for administering the Florida Medicaid Program. As part of its duties, Petitioner attempts to recover Medicaid overpayments from Medicaid providers. At all times material to this case, Humane was licensed to provide various health care services to Medicaid recipients under a contract to AHCA as a Medicaid provider. As provider number 255724000, Humane participated in the Medicaid program from January 1, 2005, to February 8, 2006 (audit period). As a Medicaid provider, Respondent was subject to audit. This case arose when the Discovery Unit of Medicaid Program Integrity (MPI) identified that during the audit period Humane billed 1.5 times as much for one week as compared to ten other weeks, which is an indicator of billing irregularities. As a result, the Discovery Unit of MPI recommended a comprehensive audit of Humane. Gary Mosier, a Registered Nursing Consultant employed by AHCA in the bureau of MPI, initiated the audit of Humane after receiving the Discovery Unit’s File #47650 Recommendation memo dated May 19, 2006, referring Humane for a comprehensive audit. On or about June 13, 2006, MPI requested 30 random Medicaid patients' records from Humane’s entire Medicaid patient group for the audit period. Humane complied with the request and supplied records. The submitted medical records included a Certificate of Completeness of Records from Humane stating the documents supplied constituted all of the Medicaid-related records for the 30 patients during the Audit period. After Humane provided the requested medical records to Mosier, he forwarded the records to three physician consultants: Machado, a general practitioner; Edgar, a psychiatrist; and Reisman, an urologist. Each physician consultant reviewed Humane’s records relevant to his area of expertise and filled out agency worksheets detailing why claims should be disallowed. MPI reviewed Humane’s records provided and the worksheets filled out by the three physician consultants and determined that overpayments were made to Humane due to numerous services in whole or in part not being covered by Medicaid, which violated various Medicaid policy guidelines set forth in both the Florida Medicaid Provider General Handbook (General Handbook)1 and the Florida Medicaid Physician Services Coverage and Limitations Handbook (Physician Services Handbook).2 Humane violated policy by providing documentation that supported a lower level of office visit than the one for which Humane billed and received payment. Humane violated policy by billing and receiving payments for some services that were not documented. Humane violated policy by billing and receiving payment for services rendered by a practitioner who was not a member of Humane’s group. Humane violated policy by billing for procedure codes that have time requirements but not documenting the time spent providing the service. Humane violated policy by billing and receiving payment for services performed by another practitioner who was not enrolled in Medicaid at the time the services were rendered. Humane violated policy by billing and receiving payment 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. Humane violated policy by billing for radiology services when the reading and interpretation was done by a radiologist outside of the physician’s group. Humane violated policy and was paid for billing and received payment for portable x-ray services where Humane performed only the technical component and an independent interpreter performed the professional component. Humane violated policy and received payment when Humane did not bill according to the current procedural terminology guidelines in certain instances. On March 13, 2007, MPI issued its Preliminary Audit Report (PAR). The report detailed the Medicaid policy violations, overpayment amounts, and provided Humane the opportunity to submit an explanation or additional documentation demonstrating that some or all of the claims were properly paid. The report also notified Humane that a Final Audit Report (FAR) would be issued identifying the amount of overpayment due. Humane did not respond to the PAR. Consequently, on April 27, 2007, MPI issued a FAR, that included the amount of $177,581.26 that Humane received from Medicaid that was not authorized to be paid. This grand total of $177,581.26 constitutes an overpayment that Humane must return to the agency. A Final Audit Report-Corrected Copy was issued on May 22, 2007, correcting the total amount due.3 In addition to the overpayment amount, Petitioner also seeks a fine in the amount of $3,000.00. The fine is a calculated amount as authorized by rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Humane to repay the Agency for the principal amount of $177,581.26 together with an administrative fine of $3000.00. DONE AND ENTERED this 22nd day of June, 2009, 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 22nd day of June, 2009.
The Issue Whether the Agency for Health Care Administration (Petitioner) is entitled to recover certain Medicaid payments made to Cape Memorial Hospital, Inc., d/b/a Cape Coral Hospital (Respondent).
Findings Of Fact Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal funding (also known as “federal financial participation” or “FFP") for services provided to Medicaid- eligible recipients in accordance with federal law. The Florida statutes and rules relevant to this proceeding essentially incorporate federal Medicaid standards. The Petitioner is the state agency charged with administering the Medicaid provisions relevant to this proceeding. Section 409.902, Florida Statutes (2015)1/, states that the Petitioner is the “single state agency authorized to make payments” under the Medicaid program. The referenced statute limits such payments to “services included in the program” and only on “behalf of eligible individuals.” The Respondent is enrolled in the Florida Medicaid Program as a Medicaid Hospital Provider. The Respondent's participation in the Florida Medicaid Program is subject to the terms of a Medicaid Provider Agreement. The Respondent's Medicaid Provider Agreement requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to undocumented aliens. Eligibility for Medicaid services is restricted to United States citizens, and to specified non-citizens who have been lawfully admitted into the United States. Pursuant to section 409.902(2)(b), Medicaid funds cannot be used to provide medical services to individuals who do not meet the statutory eligibility criteria "unless the services are necessary to treat an emergency medical condition" or are for pregnant women. The cited statute further provides that such services are “authorized only to the extent provided under federal law.” The relevant federal law (42 U.S.C. section 1396b(v)(3)) defines an "emergency medical condition" as: medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-(A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. The Florida definition of “emergency medical condition” set forth at section 409.901(10)(a) mirrors the federal definition. Pursuant to section 409.904(4), the Petitioner can make payments to a Medicaid provider on behalf of "a low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services" for “the period of the emergency, in accordance with federal regulations." The Florida Medicaid program requirements relevant to this proceeding were identified in the Florida Hospital Services Coverage and Limitations Handbook (incorporated by reference in Florida Administrative Code Rule 59G-4.160(2),), and in the Florida Medicaid Provider General Handbook (incorporated by reference in Florida Administrative Code Rule 59G-5.020.) The applicable Florida Hospital Services Coverage and Limitations Handbook provided as follows: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Similar provisions were contained in the Florida Medicaid Provider General Handbook. Section 409.913 requires that the Petitioner monitor the activities of Medicaid providers and to “recover overpayments.” The Petitioner’s Bureau of Medicaid Program Integrity (BMPI) routinely conducts audits to monitor Medicaid providers. Section 409.913(1)(e) defines “overpayment” to include “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” The BMPI conducted a review of the Respondent's claims for services rendered to undocumented aliens during the period January 1 through December 31, 2006. The Respondent provided all documentation requested by the Petitioner necessary to review the claims addressed herein. As to each claim, the designated reviewing physician made a determination, based on the medical records, as to whether the claim was related to an emergency medical condition, and, if so, when the emergency medical condition was alleviated. Based on the evidence, and on the testimony of the physicians identified herein, the determinations of the physicians are fully credited as to the existence of emergency medical conditions and as to when such conditions were alleviated. CLAIM #1 Dr. Thomas Wells reviewed Claim #1, which involved a length of stay from March 31 through April 10, 2006. Based upon his review of the medical records, Dr. Wells determined that an emergency medical condition existed on March 31, 2006, and that it had been alleviated as of April 6, 2006. CLAIM #3 Dr. Michael Phillips reviewed Claim #3, which involved a length of stay from May 27 through June 12, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on May 27, 2006, and that it had been alleviated as of May 28, 2006. CLAIM #4 Dr. Michael Phillips reviewed Claim #4, which involved a length of stay from January 15 through January 20, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on January 15, 2006, and that it had been alleviated as of January 17, 2006. CLAIM #5 Dr. Michael Phillips reviewed Claim #5, which involved a length of stay from March 4 through April 10, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on March 4, 2006, and that it had been alleviated as of March 7, 2006. CLAIM #6 Dr. Steve Beiser reviewed Claim #6, which involved a length of stay from June 15 through June 18, 2006. Based upon his review of the medical records, Dr. Beiser determined that an emergency medical condition existed on June 15, 2006, and that it had been alleviated as of June 16, 2006. CLAIM #7 Dr. Thomas Wells reviewed Claim #7, which involved a length of stay from June 15 through July 6, 2006. Based upon his review of the medical records, Dr. Wells determined that the emergency medical condition existed on June 15, 2006, and that it had been alleviated as of June 28, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Medicaid overpayment of $57,350.67 related to the six claims identified herein. Pursuant to section 409.913(23), Florida Statutes, the Petitioner is entitled to recover certain investigative, legal, and expert witness costs. Jurisdiction is retained to determine the amount of appropriate costs if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount. Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2016.
The Issue The issue for determination is whether Respondent was overpaid by the Medicaid program as set forth in Petitioner's Final Audit Report dated May 18, 2009, for the period July 1, 2004, through June 30, 2006.
Findings Of Fact AHCA audited certain of Nationwide's Medicaid claims pertaining to services rendered between July 1, 2004, and June 30, 2006, hereinafter the audit period. Nationwide was an authorized Medicaid provider of home health services to Medicaid recipients during the audit period. During the audit period, Nationwide had been issued Medicaid provider number 650065000. No dispute exists that, during the audit period, Nationwide had a valid Medicaid Provider Agreement with AHCA (Agreement). No dispute exists that, during the audit period, Nationwide received payment for services to Medicaid recipients, including for the services that are being disputed in the Amended FAR. The Agreement provided, among other things, that the submission of Medicaid claims by Nationwide for payment constituted a certification that the services were provided in accordance with state and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medicaid provider handbooks issued by AHCA. Pursuant to the federal Deficit Reduction Act of 2005, the federal Centers for Medicare and Medicaid Services (CMS) contracted with Catapult Consultants, LLC (Catapult) to conduct several audits in Florida in cooperation with AHCA's Bureau of Medicaid Program Integrity (MPI). MPI's primary responsibility is to audit healthcare providers who participate in the Florida Medicaid Program and to ensure that Medicaid providers are only reimbursed for services that are in accordance with Florida Medicaid handbooks and rules. Catapult conducted the audit on Nationwide. MPI oversaw and reviewed Catapult's audit of Nationwide. Nationwide was noticed by CMS that Catapult would be conducting an audit on Nationwide for the audit period. MPI provided Catapult with a list of sample claims to be audited. Catapult requested from Nationwide (a) documentation and complete medical records for the recipients of the service, and (b) dates of service in the sample claims. Catapult reviewed the documents and records received from Nationwide to determine (a) what services were provided, and (b) whether the services were provided in compliance with Medicaid policies and procedures. Catapult prepared a draft audit report and provided it to CMS. CMS reviewed the draft audit report and forwarded it to MPI for review. On July 7, 2008, CMS sent a Preliminary Audit Report (PAR) to Nationwide. The PAR included seven findings and identified an overpayment of $367,097.10 for claims that, in whole or part, were not covered by Medicaid. Nationwide was requested, among other things, to provide a response, including additional documentation, i.e., documentation not previously provided, that Nationwide wanted considered. Nationwide responded and provided additional documentation for Catapult to consider. Catapult, in cooperation with MPI, reviewed the additional documentation. Catapult completed a final audit report and provided it to CMS for review. CMS reviewed the final audit report and forwarded it to MPI. On May 18, 2009, MPI issued the FAR. The FAR included four findings: Finding No.1, Inadequate Information in the Treatment Plan; Finding No. 2, Services Billed Without a Valid Plan of Care (POC); Finding No. 3, Too Many Hours Billed by Private Duty Nurse; and Finding No. 4, Maintaining Records. The FAR identified and demanded repayment of an overpayment of $326,866.72 and imposed a fine of $2,500.00, totaling a repayment of $329,366.72. Subsequently, Nationwide again submitted additional documentation. On January 7, 2010, MPI issued an Amended FAR which included three findings: Finding No. 1, Services Billed Without a Valid POC; Finding No. 2, Too Many Hours Billed by Private Duty Nurse; and Finding No. 3, Maintaining Records. The Amended FAR identified and demanded repayment of an overpayment of $31,765.20 and imposed a fine of $2,500.00, totaling a repayment of $34,265.20. The Amended FAR and the work papers associated with the audit, which were in the form of a spreadsheet containing contemporaneous notes of the auditor, were admitted into evidence. Only claims included and considered in the FAR were included and considered in the Amended FAR. Finding No. 1, Services Billed Without a Valid POC Three sub-findings were included in Finding No. 1, Services Billed Without a Valid POC: Sub-Finding No. 1, POC Not Signed by a Physician; Sub-Finding No. 2, Rubber Stamp Used for the Physician's Signature; and Sub-Finding No. 3, Billed for Hours Outside the POC Authorization. Eighteen claims, considered overpayments by AHCA, were associated with Finding No. 1. One of the 18 claims, claim 351, was associated with Sub-Finding No. 1. The POC for claim 351 was signed by a nurse practitioner, not a physician, in violation of the Medicaid handbook. Nationwide does not dispute that claim 351 is an overpayment. Seven of the 18 claims were associated with Sub- Finding No. 2: claims 6, 12, 46, 71, 120, 189, and 219. Nationwide disputes that the claims were overpayments. All of the seven claims were for the same recipient of the services provided, T. S. T. S.'s attending physician, Carlos Diaz, M.D., approved the care for T. S. Dr. Diaz admitted that the signatures on the POCs were rubber stamped; and that the POCs were rubber stamped either by him or the nurse practitioner, but that he was not always present with the nurse practitioner when she stamped the POCs. Also, Dr. Diaz did not initial the rubber stamped signatures. Ten of the 18 claims were associated with Sub-Finding No. 3: claims 281, 298, 119, 72, 145, 167, 176, 274, 210, and Only claim 2 is disputed by Nationwide as an overpayment. Regarding claim 2, Nationwide billed for services that were rendered after the date that the recipient of the services was discharged by Nationwide.1 Finding No. 2, Too Many Hours Billed by Private Duty Nurse The basis for Finding No. 2, Too Many Hours Billed by Private Duty Nurse, is that more hours were billed than were supported by the documentation. Fourteen claims were associated with Finding No. 2: claims 333, 381, 388, 669, 27, 47, 701, 52, 6, 18, 36, 44, 500, and 82. Only claims 333, 27, 47, 701, 6, 18, 36, and 44 are disputed by Nationwide as overpayments. Regarding claim 333, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. As to claim 27, Nationwide billed for 12 hours of service. The evidence demonstrates 11.5 hours of service. Regarding claim 47, Nationwide billed for 12 hours of service. The evidence demonstrates 11 hours of service. As to claim 701, Nationwide billed for 15 hours of service. The evidence demonstrates 14 hours of service. Regarding claim 6, Nationwide billed for 12 hours of service. Nursing notes indicate that the recipient of the service received radiation therapy for two hours. The evidence demonstrates 10 hours of service. As to claim 18, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. Regarding claim 36, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. As to claim 44, Nationwide billed for seven hours of service. The evidence demonstrates 6.5 hours of service. The private duty nurses were LPNs. Private duty nurses are paid an hourly rate. No evidence was presented that payment was authorized for a portion of an hour. For total service hours that were one-half of an hour, AHCA rounded down to the nearest hour. As a result, claims 333, 18, 36, and 44 were rounded to six hours of service; and claim 27 was rounded to 11 hours of service. The evidence demonstrates that claims 333, 18, 36, and 44 were appropriately rounded to six hours of service; and claim 27 was appropriately rounded to 11 hours of service. Finding No. 3, Maintaining Records Three claims were associated with Finding No. 3: claims 622, 30, and 507. Nationwide failed to maintain records to support the services provided. Nationwide does not dispute that the three claims were overpayments. Accuracy of the Formula No dispute exists as to the accuracy of the formula used to calculate the total overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Nationwide Healthcare Services, Inc., received overpayments from the Medicaid program in the amount of $31,765.20 for the audit period July 1, 2004, through June 30, 2006; imposing a fine of $1,500.00; and requiring Nationwide Healthcare Services, Inc., to repay the overpayment of $31,765.20, plus a fine of $1,500.00, totaling $33,265.20. DONE AND ENTERED this 11th day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2011.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the" day of le , 2013, in Tallahassee, Leon County, Florida. ‘LM, fo: ABETH DUDEK, SECRETA “Agency for Health Care Administration 1 Filed May 8, 2013 11:26 AM 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: Mario Rub, M.D. Pediatric Pulmonologist 20776 W. Dixie Highway Aventura, Florida 33180 (Via U.S. Mail) Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Willis F. Melvin Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Via Electronic Mail) Ken Yon, Acting Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) DOH (via email) License number ME69331 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the 5 day of By » 2013. —) Richard Shoop, Esqu: Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 ire STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH Case No.: 13-0129MPI AHCA CLI. No.: 12-1694-000 MARIO RUB, M.D., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “the Agency”), and MARIO RUB, M.D. (“PROVIDER”), by and through the undersigned, hereby stipulates and agrees as follows: 1. This Agreement is entered into for the purpose of memorializing the final resolution of the matters set forth in this Agreement. 2. PROVIDER is a Medicaid provider (Medicaid Provider No. 256291000) and was a provider during the audit period, September 1, 2008 to February 28, 2011. 3. In its final audit report (FAR) dated November 13, 2012 for the case referenced as C.I. No. 12-1694-000, AHCA notified PROVIDER that review of Medicaid claims performed by Medicaid Program Integrity (MPI) indicated that, in its opinion, some claims in whole or in part had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $14,039.92. In response to the FAR, PROVIDER filed a petition for a formal administrative hearing. It was assigned DOAH Case No. 13-0129MPI. 4. Subsequent to the original audit, and in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $5,752.06 plus $1,154.41 in fines and $1,659.66 in costs for a total due of $8,566.13. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA expressly agree as follows: (1) AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is five thousand seven hundred fifty-two dollars and six cents ($5,752.06) on the indebtedness, one thousand one hundred fifty-four dollars and forty-one cents ($1,154.41) in fines, plus one thousand six hundred fifty-nine dollars and sixty-six cents ($1,659.66) in investigative costs for a total of eight thousand five hundred sixty-six dollars and thirteen cents ($8,566.13). PROVIDER will make an initial payment of one thousand seven hundred thirteen dollars and twenty-three cents ($1,713.23) followed by eleven (11) monthly payments of six hundred two dollars and forty- eight cents ($602.48) and one final payment of six hundred two dollars and forty- six cents ($602.46). The first payment will be due beginning thirty (30) days after the Final Order date. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 12-1694-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. 6. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.J. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $1,659.66 in Agency costs and $1,154.41 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. 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. 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. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or 4 incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. | This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK MARIO RUB, M.D. Printed Representativé$ Name BY. Nacio buh, 305 0060381 DEA BR 4969664 20776 W. DDGE HWY. AVENTURA, FL 33180 (905) 931-1812 + FAX (305) 931-1632 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Wl « CC mMmActeR General Counsel Aoegack dll Chief Medicaid Counsel hy. Willis F. Melvin, Jr. Assistant General Counsel Dated: Dated: Dated: Dated: Dated: 2| \3 , 2013 S/3 ,2013 r// 2 ,2013 3 5 2013 Februany LF ,2013 RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION GOVERNOR Better Health Care for all Floridians CERTIFIED MAIL No.:7009 2820 0001 5671 9368 November 13, 2012 Provider No: 2562910-00 NPI No: 1790889996 License No.:ME69331 Mario Rub, M.D. 20776 West Dixie Highway North Miami Beach, Florida 33180 In Reply Refer to FINAL AUDIT REPORT C.L: No. 12-1694-000 Dear Provider: ELIZABETH DUDEK SECRETARY 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 September 1, 2008, through February 28, 2011. A preliminary audit report dated July 16, 2012, was sent to you indicating that we had determined you were overpaid $279,132.60. Based upon a review of all documentation submitted, we have determined that you were overpaid $14,039.92 for services that in whole or in part are not covered by Medicaid. A fine of $2,807.98 has been applied. The cost assessed for this audit is $1,359.66. The total amount due is $18,207.56. 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 $2,807.98 for 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. 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 2 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, 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) 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. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment ofan illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, were insufficient to justify billing for code indicated. The documentation failed to meet the Medicaid criteria for medical necessity. The claims were either disallowed or adjusted by the peer to reflect service documented. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 173 claims was reviewed. For those claims in the sample, which have dates of service from September 1, 2008, through February 28, 2011, an overpayment of $846.51 or $4.89312139 per claim, was found. Since you were paid for a total (population) of 3,994 claims for that period, the point estimate of the total overpayment is 3,994 x 4,89312139 = $19,543.13. There is a 50 percent probability that the overpayment to you is that amount or more. We used the following statistical formula for cluster sampling to calculate the amount due the Agency: E- oe) ses 4 - -YB,y Where: N N E = point estimate of overpayment = SA, > B | Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 3 U F = number of claims in the population = s B is] A, = total overpayment in sample cluster B, = number of claims in sample cluster U =number of clusters in the population N = number of clusters in the random sample N N Y = mean overpayment per claim = > A, > B, i=] j= t = t value from the Distribution of ¢ Table All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $14,039.92, with a ninety-five percent (95%) probability that it is that amount or more. 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 in the amount of $18,207.56, 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.J. number listed on the first page of this audit report. Please mail payment to: Medicaid Accounts Receivable - MS # 14 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. Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 4 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 ifa 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: : Jennifer Ellingsen, Investigator, Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412- 4600, facsimile (850) 410-1972. Sincerely, Se Be Fred Becknell AHCA Administrator Office of Inspector General Medicaid Program Integrity FB/jse Enclosure(s) Copies furnished to: Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 5 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 Tallahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The request must be legible, on 8 % by 11-inch white paper, and contain: 1. 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. Fora 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. Fora 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. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 256291000 - MARIO RUB Overpayment Calculation Using Cluster Sampling by Recip Name Dates Of Service: 9/1/2008 through 2/28/2011 Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Totals: Using Overpayment per claim method Overpayment per sample claim: Point estimate of the overpayment: Variance of the overpayment: Standard error of the overpayment: Half confidence interval: Overpayment at the 95 % Confidence level: Overpayment run on 11/9/2012 COON ADH RWHNA 600 35 $1,083,860.97 3,994 $4.89312139 $19,543.13 $10,592,145.98 $3,254.56 $5,503.21 $14,039.92 33 FP NN FB HOMER ANNA aNWaAn = =a nN 173 Case ID: Confidence level: t value: $228.96 $145.15 $281.20 $121.92 $153.25 $68.64 $747.83 $228.96 $121.92 $168.96 $28,469.80 $76.70 $87.60 $236.70 $2,803.99 $229.95 $297.69 $171.41 $87.60 $129.39 $259.20 $3,257.45 $234.17 $87.60 $251.87 $75.97 $57.55 $34.32 $693.77 $87.60 $173.92 $87.60 $20,625.31 $121.92 $75.97 $60,981.84 Page 4 of 4 NPI: 1790889996 12-1694-000 95 % 1.690924 $0.00 $0.00 $117.70 $0.00 $0.00 $52.55 $194.73 $0.00 $0.00 $0.00 $126.76 $19.16 $0.00 $38.32 $0.00 $0.00 $38.30 $0.00 $0.00 $41.79 $54.28 $0.00 $68.75 $0.00 $0.00 $0.00 $0.00 $0.00 $94.17 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $846.51 Page 1 of 1) ( | SENDER: COMPLETE THIS SECTION ® Complete Items 1, 2, and 3. Also complete Htam 4 If Reatricted Delivery Is desired, @ Print your name and address on the reverse 80 that we can return the card to you. ® Attach this card to the back of the malipisce, ot aathn dront. Ihsvares. rete pew ™ Attach this card to the back of the mallplece, or on the front If space permits, 1. Article Addressed to: &. Hecwived by ( Printed Name) D. Is delivary address different from item 17 1 Yes IC YES, enter delivery address below: = No Mario Rub, M.D. '" 20776 West Dixie Highwa: . 'y 3. Service Type North Miami Beach, Florida 33180 Centtied Mat ©) Express Mail Cl. # 12+1694-000 JE-re Ci Regletered —-C) Return Recelpt for Merchandlee - D Insured Mall = 6.0.0, 4, Restricted Delivery? (Exira Fea) ves 2, Article Number Ganetertiomsoriceteboy 008 EBe0 OOOL Sb?) 53b8 PS Form 3811, February 2004 Domestic Return Recelpt 102595-02-M-1640 ; UniTeD States Postac SERVICE | } | | FI LORIDA AGENCY Fon SEAR CORE 2727 Mahan Dri ve, MS #6 Tallahassee Florid; Medical Unit 052308 Falbssh locas dasbaldadaElbasbeadashatbnllaht i i { { i ' ‘ i Englion Customer Service &4aUSPSCOM Quick Tools Track & Confirm YOUR LABEL NUMBER | 7o097820000188719388 i Check on Another Item What's your label (or receipt) number? LEGAL Privacy Policy » Terms of Use > FOIA> No FEAR Act EEO Oata > OTHER USPS SITES. ‘Business Custamar Gataway > Postal inspectors » Inspector General » Postal Explorer > Copyright® 2012 USPS. AN Rights Raservad. 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The Issue Whether Respondent engaged in sanctionable conduct in violation of Medicaid laws, as alleged in the April 9, 2012, sanction letters the Agency for Health Care Administration (ACHA) sent to Respondent in the above-styled cases, and, if so, what sanction(s) should be imposed.
Findings Of Fact AHCA is the state agency charged with administering and overseeing the Medicaid program in Florida. Housed within AHCA is the Bureau of Medicaid Program Integrity (MPI). Among MPI's responsibilities is to conduct audits and investigations to ensure that the state's Medicaid providers are in compliance with programmatic requirements. At all times material to the instant cases, Respondent was enrolled in the Florida Medicaid program under two separate provider numbers (Provider No. 679849796, as a provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services, and Provider No. 142150600, as a provider of assistive care services) and subject to the terms of Medicaid Provider Agreements,3/ which contained the following provisions, among others: (5) Provider Responsibilities: The Medicaid provider shall: * * * (b) Keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years. * * * (d) Send, at the provider's expense, legible copies of all Medicaid-related information to authorized state and federal employees, including their agents. The provider shall give state and federal employees access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records; and, in connection with Provider No. 679849796, it was also subject to the terms of a Medicaid Waiver Services Agreement with the Florida Agency for Persons with Disabilities (APD),4/ in which it had agreed, among other things, to do the following: To permit persons duly authorized by APD, the Agency for Health Care Administration (AHCA), or representatives of either, to monitor, audit, inspect, and investigate any recipient records, payroll and expenditure records, (including electronic storage media), papers, documents, facilities, goods and services of the Provider, which are relevant to this Agreement . . . . * * * Upon demand, and at no additional cost to the APD, AHCA, or their authorized representatives, the Provider will facilitate the duplication and transfer of any records or documents (including electronic storage media), during the required retention period . . . . At all times material to DOAH Case No. 12-1664MPI Respondent, as an enrolled Medicaid provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services, was bound by the following provisions of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook dealing with employee training and recordkeeping requirements, which handbook provisions were incorporated by reference (along with the other provisions of the handbook) in Florida Administrative Code 59G-13.083: Companion Provider Requirements * * * Training Requirements Proof of training in the areas of Cardiopulmonary Resuscitation (CPR), HIV/AIDS and infection control is required within 30 days of initially providing companion services. Proof of annual or required updated training shall be maintained on file for review. The provider is responsible for all training requirements outlined in the Core Assurances. Note: Refer to the Core Assurances in Appendix A for the provider training requirements. . . . * * * Appendix A: Core Assurances for Providers of Developmental Disabilities Home and Community-Based Waiver Services Program * * * 2.1 Required Training The provider and its employees will ensure they receive the specific training required to successfully serve each recipient including the following topics: * * * H. All direct service providers hired after 90 days from the effective date of this rule are required to complete the Agency for Persons with Disabilities developed Zero Tolerance Training course prior to rendering direct care services (as a pre-service training activity). Said training may only be completed via APD's web-based instruction or classroom-led instruction (using APD's approved classroom curriculum presented either by APD staff or an individual who has been trained and approved by APD to conduct such classroom trainings). In addition, all direct service providers shall be required to complete the APD developed Zero Tolerance training course at least once every three years. The provider shall maintain on file for review, adequate and complete documentation to verify its participation, and the participation of its employees, in the required training sessions. The documentation for the above listed training shall, at a minimum, include the training topic(s), length of training session, date and location of training, name and signature of trainer, name and signature of person(s) in attendance. Proof of training shall be on file and available for monitoring and review. At all times material to DOAH Case No. 12-1841MPI, Respondent, as an enrolled Medicaid provider of assistive care services, was bound by the following provisions of the Assistive Care Services Coverage and Limitations Handbook dealing with health assessments, which handbook provisions were incorporated by reference (along with the other provisions of the handbook) in Florida Administrative Code Rule 59G-4.025: Recipients receiving Assistive Care Services must have a complete assessment at least annually by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) or sooner if a significant change in the recipient's condition occurs (see below for a definition of a significant change). An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. -The assessment for a resident of a ALF or AFCH must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. -The assessment for a resident of a RTF must be completed by a physician or licensed mental health professional. The assessment must document the need for at least two of the four ACS components. The assessment for ALF residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. At all times material to both DOAH Case No. 12-1664MPI and DOAH Case No. 12-1841MPI, Respondent was also bound by the following provisions of the Florida Medicaid Provider General Handbook, which were incorporated by reference in Florida Administrative Code Rule 59G-5.020 and applied to all enrolled Medicaid providers, including providers of Developmental Disabilities Home and Community-Based Medicaid Waiver services and providers of assistive care services: Record Keeping Requirement Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010(154) F.A.C., and medical records as defined in 59G-1.010(160) F.A.C. on all services provided to a Medicaid recipient.[5/] Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. * * * Record Retention Records must be retained for a period of at least five years from the date of service. * * * Right to Review Records Authorized state and federal agencies and their authorized representatives may audit or examine a provider's or facility's records. This examination includes all records that the agency finds necessary to determine whether Medicaid payment amounts were or are due. This requirement applies to the provider's records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid- related records. The provider must send, at his expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives upon request of AHCA. At the time of the request, all records must be provided regardless of the media format on which the original records are retained by the provider. All medical records must be reproduced onto paper copies. * * * Incomplete Records Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment The foregoing contractual and handbook provisions supplemented section 409.913(9), Florida Statutes, which then provided (as it still does) as follows: A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. However, 24-hour notice must be provided if patient treatment would be disrupted. The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid- related records. The authority of the agency to obtain Medicaid-related records from a provider is neither curtailed nor limited during a period of litigation between the agency and the provider. On or about December 6, 2011, MPI investigators visited Respondent's facility to review Respondent's Medicaid-related records, but left before completing their review. Approximately a month later, MPI sent Respondent a letter, dated January 5, 2012, concerning claims that Respondent had filed under its Provider No. 679849796 as a provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services (January 5 Letter). The letter read as follows: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity is in the process of completing a review of claims billed to Medicaid during the period June 01, 2011, through December 01, 2011, to determine whether the claims were billed and paid in accordance with Medicaid policy. Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid provider to the above provider number [679849796]. The Medicaid-related records to substantiate billing for the [four] recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. Please submit the documentation and the attached Certification of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. Correspondence and requested records should be sent to the following address: Victor Rivera, Investigator Agency for Health Care Administration Medicaid Program Integrity 400 West Robinson Street, Suite S309 South Tower, Hurston Building Orlando, Florida 32801 In accordance with Section 409.913, F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. Pursuant to the aforementioned provisions, failure to provide all Medicaid-related records in compliance with this request will result in the application of sanctions, which include, but are not limited to, fines, suspension and termination. The Medicaid-related records associated with this review should be retained until [the review is] completed. If you have any questions, please contact Victor Rivera, Investigator, at (407)420- 2524. The Certification of Completeness of Records form enclosed with the letter was to be completed by the provider's "official custodian of records," and it contained the following verification and certification: I hereby verify that I have searched the Medicaid-related records maintained by the Provider and have determined that the attached records consisting of (# of pages) are true and correct copies of the Medicaid- related records requested by the Agency for Health Care Administration, Office of the Inspector General, Bureau of Medicaid Program Integrity. I further certify that these are all of the Medicaid-related records that were made at or near the time that the services were rendered by, or from information transmitted by, the Provider; are kept in the course of the regularly conducted business of the Provider; and that it is the regular practice of the Provider to keep such records. Also accompanying the letter was a printout providing information concerning "documentation organization." Among other things, it advised that the "employee documentation" that needed to be submitted included "[c]opies of all required AHCA training certificates," and it contained the further advisement that "[f]ailure to follow the aforementioned guidelines and/or failure to provide the [sic] ALL of the requested documentation for ALL staff members who provided services to Medicaid Recipients during the predetermined audit period w[ould] result in the [a]application of sanctions," including "fines." The January 5 Letter and accompanying documents were received by Respondent on January 9, 2012. Ten days later, MPI sent Respondent a second letter, dated January 19, 2012 (January 19 Letter). This letter concerned claims that Respondent had filed under its Provider No. 142150600 as a provider of assistive care services, and it provided as follows: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity is in the process of completing a review of claims billed to Medicaid during the period January 1, 2011, through November 30, 2011, to determine whether the claims were billed and paid in accordance with Medicaid policy. Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid provider to the above provider number [143150600]. The Medicaid-related records to substantiate billing for the [four] recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. Please submit copies of the Medicaid-related records and the attached Certification of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. Correspondence and requested records should be sent to the following address: Victor Rivera, Investigator Agency for Health Care Administration Medicaid Program Integrity 400 West Robinson Street, Suite 309 South Tower, Hurston Building Orlando, Florida 32801 In accordance with Section 409.913, F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. Pursuant to the aforementioned provisions, failure to provide all Medicaid-related records in compliance with this request will result in the application of sanctions, which include, but are not limited to, fines, suspension and termination. The Medicaid-related records associated with this review should be retained until [the review is] completed. If you have any questions, please contact Victor Rivera, Investigator, at (407)420- 2524. At the bottom of the "enclosed printout" referenced in the letter was the following cautionary advisement: Please refer to your Assistive Care Services handbook, July 2009, for information on the required documentation for recipient files. The Certification of Completeness of Records form enclosed with the letter was identical to the Certification of Completeness of Records form that had accompanied the January 5 Letter. The January 19 Letter and accompanying documents were received by Respondent on January 21, 2012. Respondent, through its owner/administrator Angel Cox, responded to the records requests made in the January 5 and January 19 Letters by providing MPI with copies of numerous documents, along with two completed, signed, and dated Certifications of Completeness of Records (one for each records request), on January 24, 2012.6/ Ms. Cox supplemented this response by faxing additional copies to MPI on February 7, 2012. Victor Rivera, the MPI investigator to whom Respondent had been directed to send its responses to MPI's January 5, 2012, and January 19, 2012, records requests, reviewed the documentation that Ms. Cox had submitted and determined that the following Medicaid-related records that Respondent had been requested to produce in the January 5 and January 19 Letters were missing (hereinafter referred to collectively as the "Further Required Documentation"): written proof that D. S., an employee of Respondent's who had helped deliver services for which Respondent had billed the Florida Medicaid program from June 1, 2011, through December 1, 2011, under its Developmental Disabilities Home and Community-Based Medicaid Waiver services provider number, had completed the infection control and zero tolerance training required by the Developmental Disabilities Waiver Services Coverage and Limitations Handbook; and the annual health assessments required by the Assistive Care Services Coverage and Limitations Handbook for the four recipients of the services for which Respondent had billed the Florida Medicaid program from January 1, 2011, through November 30, 2011, under its assistive care services provider number. At all times material to the instant cases, Respondent had the Further Required Documentation in its possession,7/ however, Ms. Cox had inadvertently failed to include these documents in the submissions she made (on behalf of Respondent) in response to MPI's January 5 and January 19 Letters. Ms. Cox first learned that the Further Required Documentation was missing during a telephone conversation she had with Mr. Rivera at the end of March 2012, when he advised her of the omission and told her that she needed to get these documents to him "as soon as possible."8/ On April 1 or 2, 2012, no more than three or four days after this telephone conversation, Ms. Cox provided Mr. Rivera, by fax, with copies of the following: a certificate of completion issued by APD to employee D. S. on April 28, 2010, for "Zero Tolerance Training"; a certificate of completion issued by All Metro Health Care to employee D. S. for "Infection Control Guidelines" training completed on February 12, 2011; and a completed March 2011 annual health assessment recorded on AHCA Form 1823 (2011 Health Assessment Form) for each of the four recipients identified in the printout accompanying the January 19 Letter. Respondent also had in its possession the previous year's completed AHCA Form 1823 (2010 Health Assessment Form) for each of these recipients, but Ms. Cox did not fax copies of these forms9/ to Mr. Rivera because she reasonably believed that Mr. Rivera had asked only for the 2011 Health Assessment Forms.10/ MPI tries to "work with the [Medicaid] providers." If a provider is asked by MPI to provide, "as soon as possible," a specified document or documents previously requested but not produced and the provider, in response to such a follow-up request, produces the document(s) in question within a matter of days, it is MPI's practice to not impose any sanctions on the provider and, instead, to "move on to the next case."11/ In the instant cases, however, in an unexplained departure from that practice, MPI chose to issue the April 9, 2012, sanction letters set out above. It is these sanction letters that frame the issues to be resolved in these cases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration dismiss the allegations made against Respondent in the April 9, 2012, sanction letters issued in these cases and it not impose any sanctions against Respondent for the conduct alleged in these letters. DONE AND ENTERED this 21st day of February, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2013.
The Issue The issues in this case are: (1) Whether Respondent violated sections 409.913, Florida Statutes, as alleged in the Sanction Letter dated January 18, 2012, by failing to have documentation evidencing the receipt of Core Assurances training in six employees' files; failing to have documentation evidencing the receipt of required HIPAA training in one employee file; and failing to have documentation evidencing the receipt of Zero Tolerance training in one employee file2/; and (2) if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for administering the Florida Medicaid Program pursuant to chapter 409. Petitioner's duties include operating a program to oversee the activities of Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913(1), Fla. Stat. To that end, Petitioner is authorized to conduct investigations of Medicaid providers to determine compliance with the Medicaid program. § 409.913(2), Fla. Stat. Respondent is an enrolled Medicaid provider providing home-based and community-based services to the developmentally disabled in a residential habilitation setting.3/ Respondent became an enrolled Medicaid provider in April 2004, and has been an enrolled Medicaid provider at all times pertinent to this proceeding. Medicaid Provider Agreement To become enrolled as a Medicaid provider for the developmentally disabled in Florida, a provider applies with Petitioner and the Agency for Persons with Disabilities ("APD"). If the provider is approved for enrollment in the Medicaid program, it enters into a Medicaid Provider Agreement ("MPA") with Petitioner. The MPA establishes the terms and conditions of the provider's participation in the Medicaid program. A key condition is that the provider agrees to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program, including the applicable Medicaid Handbooks. The Florida Medicaid Development Disabilities Waiver Services Coverage and Limitations Handbook, dated November 2010 ("DD Handbook"), and the Florida Medicaid Provider General Handbook, dated July 2008 ("General Handbook"), are applicable to this proceeding. Petitioner's Inspection of Respondent's Facility On September 28, 2011, Ms. Gina Selwitz, an Inspector Specialist with Petitioner's Bureau of Medicaid Program Integrity, conducted an unannounced site inspection at Respondent's facility to review Respondent's employee records and recipient files for compliance with applicable Medicaid program requirements. As part of the inspection, Ms. Selwitz reviewed the records of six employees for documentation that they had received required training in a range of areas, including Core Competency, Health Insurance Portability and Accountability Act ("HIPAA") compliance, and Zero Tolerance Training, as required under state and federal law and rules and the General Handbook and DD Handbook. Ms. Selwitz determined that required documentation showing Core Assurances training was missing from six of Respondent's employees' files. She also determined that required documentation showing HIPAA training was missing from the file of one of Respondent's employees. Additionally, she determined that required documentation showing Zero Tolerance training was missing from the file of one of Respondent's employees. Demand Letter Regarding Submittal of Missing Information While conducting the compliance inspection, Ms. Selwitz hand-delivered to Respondent a demand letter dated September 28, 2011. The demand letter stated in pertinent part: Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid program to the above provider number. The Medicaid-related records to substantiate billing for the recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. In addition, please complete the attached questionnaire and submit it along with the copies of the Medicaid- related records. Please submit the documentation and the attached Certificate of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. The referenced questionnaire and printout were not attached to the demand letter. Ms. Selwitz provided Respondent a handwritten list of items that she determined were missing from its files and that needed to be submitted in response to the demand letter. Respondent's Responses to Demand Letter and Sanction Letter On October 12, 2011, Respondent's representative, Mr. Orukotan, sent Ms. Selwitz electronic mail requesting that she send the editable Developmental Services Medicaid Provider Questionnaire form so Respondent could complete and submit it by October 14, 2011. After further electronic mail exchange, Ms. Selwitz provided the form to Mr. Orukotan on October 18, 2011. Respondent submitted the completed Questionnaire on November 3, 2011. In addition, Respondent submitted its Certificate of Completeness of Records and the other items that were requested in Ms. Selwitz's handwritten list provided with the demand letter. The handwritten list did not identify employee training documentation for Core Assurances, HIPAA, and Zero Tolerance as missing from Respondent's files; accordingly, Respondent did not provide that documentation as part of its November 3, 2011, submittal. Subsequently, Petitioner issued a Sanction Letter, dated January 18, 2012, which in part alleged that Respondent failed to have documentation in its files evidencing the receipt of employee training in Core Assurances, HIPAA, and Zero Tolerance. After receiving the Sanction Letter, Respondent submitted documentation of employee training in Core Assurances, HIPAA, and Zero Tolerance to demonstrate its compliance with the Medicaid program documentation requirements. Ms. Selwitz claimed that in addition to the handwritten list, she had given Respondent a typewritten list that identified other specific information, including the employee training documentation, that she determined missing from Respondent's files and needed to be provided pursuant to the demand letter. Respondent credibly testified that he never received this typewritten list of additional requested items. In support of Ms. Selwitz's testimony, Petitioner provided, as a supplemental exhibit, a typewritten form entitled "Residential Rehabilitation Provider." At the top of the form were three spaces to be filled in with the facility's name and the date and time of inspection; however, no information regarding Respondent's facility or its inspection was filled in the spaces, which were left blank. The form generally requested a range of items, including "[a]ll employee records (include Level II (FDLE and FBI) background check information)[4/]" but did not specifically request that Core Assurances, HIPAA, or Zero Tolerance employee training documentation be provided. The form further stated: "please provide the following records so that they may be reviewed on-site . . ."; This statement was followed by a list of items. However, Petitioner's facility inspection checklist and notes did not identify these items as missing from Respondent's files.5/ Rather than comprising an additional list of information that Ms. Selwitz prepared and provided to Respondent to specifically identify missing information to be submitted pursuant to the demand letter, the Residential Rehabilitation Provider list instead appears to be a general form list that Petitioner provides before or at the time of facility inspection. Under any circumstances, the form's lack of specificity regarding employee training documentation for Core Assurances, HIPAA, and Zero Tolerance would not have given Respondent notice that Petitioner had determined such documentation was missing from its files and needed to be provided as part of its response to the demand letter. The credible evidence establishes that Respondent was not given this typewritten form or otherwise notified that Petitioner had determined that employee training documentation for Core Assurances, HIPAA, and Zero Tolerance was missing from its files and needed to be provided pursuant to the demand letter. Respondent's Compliance With Record-Keeping Requirements Section 409.913, Petitioner's rules, the DD and General Handbooks, and federal law require that providers keep and produce as required, specified employee records, including records demonstrating training in a range of areas, including Core Assurances, HIPAA, and Zero Tolerance. Ms. Selwitz testified that if information determined to be missing from a provider's files during a compliance inspection is timely submitted pursuant to the demand letter, the provider is deemed to be in compliance with the applicable record-keeping and document production requirements in state and federal Medicaid law. Here, Petitioner did not notify Respondent that it had determined that certain employee training documentation was missing from its files. Thus, Respondent was not given the opportunity to establish compliance with the record-keeping and document production requirements by timely submitting this documentation in accordance with Petitioner's demand letter. Mr. Orukotan testified that Respondent kept the requested documentation in its employee files and would have provided it, had Petitioner notified Respondent that its inspection determined the documentation was missing. His testimony, which is bolstered by the fact that Respondent did timely submit all information pursuant to the handwritten list provided with the demand letter, is deemed credible and persuasive. As previously noted, Respondent submitted the employee training documentation upon being informed, pursuant to the Sanction Letter, that Petitioner had determined such documentation was missing from its files.6/ Under the present circumstances——where Petitioner failed to afford Respondent an opportunity to demonstrate compliance by timely responding to its demand letter, and where Respondent, when informed of the deficiencies, submitted the requested documentation——the undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent violated chapter 409, Petitioner's applicable rules, the DD Handbook, the General Handbook, and federal law, as charged in the January 18, 2012, Sanction Letter.7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order determining that Respondent did not violate federal and state Medicaid laws as charged in the January 18, 2012 Sanction Letter. DONE AND ENTERED this 2nd day of October, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2012.
