The Issue Whether Petitioner, Agency for Health Care Administration (“AHCA”), is entitled to recoup from Respondent, JRM Pharmacy, Inc., d/b/a Super Drugs Pharmacy (“JRM”), $156,657.05 as Medicaid overpayments; and whether investigative, legal, expert witness costs, and fines should be imposed against JRM.
Findings Of Fact AHCA is the designated state agency responsible for administering the Medicaid Program in Florida. At all times material to this case, JRM has been a licensed pharmacy and authorized Medicaid provider pursuant to a Medicaid Provider Agreement with AHCA. The Medicaid Provider Agreement is a voluntary contract between AHCA and JRM. JRM’s Medicaid provider number is 102451500. As an enrolled Medicaid provider, JRM is subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, Medicaid provider publications, and the Medicaid Provider Agreement between it and AHCA. At all times during the audit period, JRM was required to follow the Florida Medicaid Prescribed Drugs, Services, Coverage, Limitations, and Reimbursement Handbook (“Prescribed Drugs Services Handbook”). This case involves a Medicaid audit by AHCA of JRM as to dates of service from January 1, 2010, through December 31, 2010 (“audit period”). AHCA’s Bureau of Medicaid Program Integrity (“MPI”), pursuant to its statutory authority, conducted an audit of JRM of paid Medicaid claims for medical goods and services to Medicaid recipients which occurred during the period from January 1, 2010, through December 31, 2010. The audit included a comparison of the amount of prescription medications billed to Medicaid by JRM during the audit period with the units of the corresponding medications JRM purchased from licensed wholesalers. The audit concluded that JRM was overpaid a total of $156,657.05 for various prescription medications it billed to AHCA and received payment from AHCA. The claims which make up the overpayment alleged by AHCA of $156,657.05 were filed and paid by AHCA prior to the institution of this matter. JRM does not dispute that it was overpaid $43,890.02 for various prescription medications, and JRM concedes that AHCA is entitled to recover this amount as an overpayment. However, JRM disputes the remaining balance of AHCA’s alleged overpayment of $112,767.03, which AHCA attributes to an overpayment to JRM for the brand named prescription drug Prevacid 30 mg Capsule DR (“Prevacid”). The audit involved a review of JRM’s purchases of Prevacid from McKesson, and Lansoprazole from Bellco, the authorized wholesalers, during the audit period. The audit established that JRM billed to AHCA and received payment from AHCA for more Prevacid than JRM had available during the audit period to dispense to Medicaid recipients. Specifically, the persuasive evidence adduced at hearing demonstrates JRM was overpaid $112,767.03 for Prevacid. When a Medicaid pharmacy provider submits a claim to Medicaid for payment, Medicaid identifies the prescription drug on the claim by the National Drug Code (“NDC”). The generic form of Prevacid is Lansoprazole. Prevacid and Lansoprazole have different NDC numbers. JRM was required to submit the entire 11-digit NDC number for the actual product dispensed on the claim. During the audit period, JRM billed to Medicaid and was paid by Medicaid for “NDC: 00300304613 PREVACID 30 MG CAPSULE DR, NDC: 00300304619 PREVACID 30 MG CAPSULE DR, AND NDC: 64664004613 PREVACID DR 30 MG CAPSULE.” The persuasive evidence adduced at hearing demonstrates that JRM billed Medicaid and was paid by Medicaid for 31,650 Prevacid capsules. However, JRM only purchased 10,907 units of Prevacid, leaving a shortage of 20,744 capsules of Prevacid and an overpayment of $112,767.03. Thus, JRM received payment from Medicaid for $112,767.03 for Prevacid that JRM did not purchase and did not dispense to Medicaid recipients. There is a significant cost difference between the brand name Prevacid and generic Lansoprazole, with the brand name Prevacid being billed at a much higher rate than the generic Lansoprazole. JRM purchased a large amount of Lansoprazole from Bellco during the audit period, but billed and received payment from Medicaid for Prevacid. Only prescription drugs that are on the Florida Medicaid Preferred Drug List are allowed to be paid for by Medicaid. During the audit period, generic Lansoprazole was not on AHCA’s preferred drug list. However, Prevacid was on AHCA’s preferred drug list. JRM often dispensed Lansoprazole and billed and received payment from Medicaid for dispensing Prevacid.
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 of recoupment of a Medicaid overpayment from JRM in the amount of $156,657.05; impose a fine of $5,000.00; and remand this matter to the undersigned for a determination of the amount of investigative, legal, and expert witness costs, should a final order be entered by AHCA indicating that AHCA ultimately prevailed, and if there is any dispute as to the amount of such costs following the issuance of the final order by AHCA. DONE AND ENTERED this 13th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 13th day of January, 2015.
The Issue Whether Respondent violated section 409.913, Florida Statutes, by failing to retain required Medicaid records, thereby incurring a $10,000 fine according to Florida Administrative Code Rule 59G-9.070(7)(e).
Findings Of Fact Respondent is a Medicaid Provider of Assistive Care Services in Oakland Park, Florida. Annie Mathew is a registered nurse who manages Respondent's facility. Respondent was obligated, pursuant to the Medicaid Provider Agreement executed in June 2008, to comply with applicable Medicaid laws, administrative rules, and Medicaid handbooks. The Agency is the state agency charged with the administration of the Medicaid program in Florida. Within the Agency, the Inspector General ensures the integrity of the Medicaid program by conducting investigations of providers to ensure compliance with all Medicaid rules. On December 7, 2011, the Agency conducted an unannounced on-site inspection of the medical records retained by Respondent. Mr. Cedeno and Ms. Hollis-Stancil conducted the investigation, reviewing ten recipient files. The investigators found that nine of the recipient files did not contain a proper service plan; one recipient did not contain a service plan at all, and had an outdated health assessment. Respondent did not use the Medicaid form found in the Medicaid Assistive Care Services Coverage and Limitations Handbook for service plans; instead, Respondent used a form created by Respondent, which contained some, but not all, of the components addressed in the Medicaid form. The investigators noticed that the facility was clean and in good condition. At the hearing, Respondent admitted to not using the Medicaid form for service plans, and agreed that not all of the components addressed in the Medicaid form were addressed in the form created by Respondent. Specifically, the service plan must contain the expected outcome for the resident, and identify who is going to provide specific services to the resident. Respondent's forms did not reflect this information. As to one recipient, recipient S.V., the file did not contain a current health assessment. The health assessment found in the file had expired in September 2011, three months prior to the inspection in December 2011. All ten counts against Respondent are supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to rule 59G-9.070(7)(e), the Agency for Healthcare Administration fine Respondent $10,000 for ten first offense counts of failure to comply with the Medicaid rules. DONE AND ENTERED this 19th day of March, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 19th day of March, 2013.
The Issue The issue in this case is whether Petitioner must reimburse Respondent for overpayments totaling $2,851.19 which Petitioner received from the Florida Medicaid Program during the period May 24, 1999 through January 26, 2001.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is an agency of the State of Florida. The Agency is responsible for administering the Florida Medicaid Program. See Chapter 409, Florida Statutes. Among other responsibilities, the Agency is authorized "to recover overpayments . . . as appropriate . . . ." Section 409.913, Florida Statutes. Petitioner, Meji, Inc., d/b/a 7th Avenue Pharmacy (hereinafter referred to as "Meji"), was, at all times pertinent to this case, a duly authorized Medicaid provider, having entered into a Medicaid Provider Agreement with the Agency. Meji was assigned Medicaid Provider Number 0165076-00. Meji is also a licensed pharmacy in Florida, having been issued license number PH0016158. As a Medicaid provider, Meji is authorized to dispense drugs and supplies to Medicaid recipients, for which Meji is entitled to reimbursement from the Medicaid Program. In return, Meji has agreed to comply with all governing statutes, rules, and policies, including policies set forth in the Florida Medicaid Prescribed Drug Services Coverage Limitations and Reimbursement Handbook, incorporated by reference into Rule 59G- 4.250(2), Florida Administrative Code. On March 20, 2001, an audit was performed of payments from the Medicaid Program to Meji. On January 24, 2002, a Provisional Agency Audit Report was issued finding that Meji had received $40,062.52 in overpayments from the Medicaid Program and offering Meji an opportunity to respond to the Agency's provisional determination. When Meji failed to respond to the Provisional Agency Audit Report, the Agency issued a Final Agency Audit Report informing Meji that the Agency intended to seek reimbursement of the $40,062.52 in overpayments Meji had received for services provided during the period May 24, 1999 through January 26, 2001. The Final Agency Audit Report was issued March 8, 2002. Meji requested a hearing to contest the Agency's determination and provided documentation not previously provided to the Agency. On March 19, 2003, after reviewing the newly provided documentation, the Agency issued an Amended Final Agency Audit Report in which the Agency informed Meji that it had received overpayments of $2,851.19. In response to this notice, Meji requested a formal administrative hearing by letter dated March 20, 2003. The amount of the overpayments which the Agency seeks to recoup in this proceeding was determined by taking a statistically valid random sample of Meji's submitted Medicaid claims submitted during the audit period. The amount of the overpayments found in the random sample was then extended to the total of Meji's claims for the audit period based upon generally accepted statistical formulas and methods. By failing to respond to the Agency's Request for Admissions, Meji is deemed to have admitted the validity of the statistical formula utilized by the Agency. The Amended Final Agency Audit Report, along with the supporting work papers, were offered and accepted in evidence in this case. The Amended Final Agency Audit Report, in an attached Pharmacy Audit-Final Report, sets out the manner in which the overpayments were calculated. Those calculations are further described in proposed finding of fact P.(1) through (6) of the Respondent's Proposed Recommended Order and Incorporated Closing Argument. Those findings are hereby accepted and incorporated into this Recommended Order by reference. The Amended Final Agency Audit Report and supporting work papers admitted in evidence in this case show that Meji received overpayments in the amount of $2,851.19. No evidence to the contrary was offered by Meji. The Agency incurred costs during the investigation of this matter. The amount of those costs was not known at the time the final hearing was conducted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Meji's to repay the Agency the principal amount of $2,851.19 plus interest as provided in Section 409.913, Florida Statutes. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 15th day of July, 2003. COPIES FURNISHED: Debora A. Fridie, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Mail Station 3 Tallahassee, Florida 32308 Sola Gafaru, President Meji, Inc. 14812 Northwest 7th Avenue Miami, Florida 33168 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Fort Knox Building III Tallahassee, Florida 32308
The Issue Whether Petitioner received Medicaid overpayments and, if so, the total amount of the overpayments.
Findings Of Fact AHCA is charged with administration of the Medicaid program in Florida pursuant to Section 409.907, Florida Statutes. Petitioner is a durable medical equipment provider that provided Medicaid services to Medicaid beneficiaries pursuant to a valid Medicaid Provider Agreement with AHCA under provider number 9512721 00. Petitioner was an authorized Medicaid provider during the period of October 1, 1999, through September 30, 2001, which is the audit period at issue here. AHCA conducted an audit of paid Medicaid claims for services claimed to have been performed by Petitioner from October 1, 1000, through September 30, 2001. On October 16, 2002, AHCA issued a Final Agency Audit Report ("FAAR") requesting Petitioner to reimburse AHCA in the amount of $28,407.90, for Medicaid claims submitted by and paid to Petitioner, for services allegedly rendered during the audit period. When the FAAR was issued, AHCA's claims for overpayment were based upon audit findings that paid Medicaid claims for certain services performed by Petitioner did not meet Medicaid requirements. The deficiencies in the subject Medicaid claims included a lack of documentation of required medication for nebulizer equipment, payments in excess of allowable total amounts for rent-to-purchase equipment, and payments for portable oxygen with a lack of documentation that the attending practitioner has ordered a program of exercise or an activity program for therapeutic purposes, that the recommended activities cannot be accomplished by the use of stationary oxygen service, and that the use of a portable oxygen system during exercise or activity results in improvement in the individual's ability to perform the exercises or activities. During the subject audit period, the applicable statutes, rules, and Medicaid handbooks required Petitioner to retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. Petitioner had to retain these records for at least five years from the dates of service. Petitioner had a duty to make sure that each claim was true and accurate and was for goods and services that were provided in accordance with the requirements of Medicaid rules, handbooks, and policies, and in accordance with federal and state law. Medicaid providers who do not comply with the Medicaid documentation and record retention policies may be subject to administrative sanctions and/or recoupment of Medicaid payments. Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped. Claire Cohen, AHCA's analyst, generated a random list of 30 Medicaid recipients (cluster sample) who had received services by Petitioner during the audit period. In addition, AHCA generated work papers revealing the following: the total number of Medicaid recipients during the audit period; the total claims of Petitioner, with dates of services; the total amount of money paid to the Petitioner during the audit period; and worksheets representing the analyst's review of each recipient's claims for the audit period. After Ms. Cohen reviewed the medical records and documentation provided by Petitioner, she reviewed the Medicaid handbook requirements, and arrived at a figure of $7,572.13 as the total overpayment for all cluster sample claims. Using the Agency's formula for calculating the extrapolated overpayment, Ms. Cohen determined that the overpayment in this case amounted to $29,703.63. Ms. Cohen then prepared the June 20, 2002, Preliminary Agency Audit Report (PAAR) and mailed it to Petitioner. At that point, the case was reassigned to Ellen Williams, a program analyst/investigator. Ms. Williams reviewed additional documentation submitted by Petitioner, and on October 16, 2002, issued on behalf of AHCA, the FAAR, which reduced the alleged overpayment to $28,407.90. Part of this reduction resulted from Petitioner's paying $369.97 to satisfy the issue concerning payments in excess of allowable totals for rent-to-purchase equipment. At the hearing, Ms. Williams testified that the adjusted overpayment amount was $27,473.27. The formula used by AHCA is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by AHCA are valid formulas. The DME/Medical Supply Services Coverage and Limitations Handbook provides, in part: Medicaid reimburses for portable oxygen when a practitioner prescribes activities requiring portable oxygen. The oxygen provider must document the following information in the recipient's record: the recipient qualifies for oxygen service; the attending practitioner has ordered a program of exercise or an activity program for therapeutic purposes; the recommended exercises or activities cannot be accomplished by the use of stationary oxygen services; and the use of a portable oxygen system during the activity or exercise results in an improvement in the individual's ability to perform the activities and exercises. The DME/Medical Supply Services Coverage and Limitations Handbook also provides, in part: Medicaid may reimburse for a nebulizer if the recipient's ability to breathe is severely impaired. The documentation of medial necessity must include required medications. The following payments are claimed by AHCA to be overpayments for failure to provide documentation of medical necessity and required medications: Recipient Date of Service Procedure Overpayment 4 7/19/00 E0570 $106.70 9 6/30/00 E0570 $106.70 10 10/24/00 E0570 $106.70 14 02/15/00 E0570 $106.70 16 05/08/00 E0570 $106.70 23 06/09/00 E0570 $106.70 26 06/14/00 E0570 $106.70 The remaining overpayments claimed by AHCA concern the failure to document that the attending practitioner had ordered a program of exercise or an activity program for therapeutic purposes that required the use of a portable oxygen system. The Medicaid Provider Reimbursement Handbook provides, in part, that "Records must be retained for a period of at least five years from the date of service." The types of records that must be retained include "patient treatment plans" and "prescription records." The handbook goes on to provide in pertinent part: Medical records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the services rendered: * * * Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; * * * Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service. 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. Petitioner, through its owners and operators, is of the view that it does not need to have the documentation on file, and it does not ask physicians for details about their prescriptions, "because that's something private from doctors and patient." Petitioner, by signing a Medicaid Provider agreement, agreed that all submissions for payment of claims for services will constitute a certification that the services were provided in accordance with local, state, and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medical Provider Handbooks issued by AHCA. Petitioner routinely obtained from Medicaid beneficiaries to whom it provides goods or services a written statement authorizing other healthcare provides to furnish any information needed to determine benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order requiring Petitioner to reimburse the Agency for Medicaid overpayments in the total amount of $27,473.27, plus such interest as may statutorily accrue. DONE AND ENTERED this 22nd day of September, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 22nd day of September, 2003. COPIES FURNISHED: Tom Barnhart, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Lawrence R. Metsch, Esquire Metsch & Metsch, P.A. 1455 Northwest 14th Street Miami, Florida 33125 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The Agency for Health Care Administration (Agency) is the successor to the Department of Health and Rehabilitative Services as the single state agency responsible for the administration of the Medicaid program in the State of Florida. The Agency is required to operate a program to oversee the activities of Medicaid providers and is authorized to seek recovery of Medicaid overpayments to providers pursuant to Section 409.913, Florida Statutes. The division of the Agency responsible for the oversight of Medicaid providers is referred to as Medicaid Program Integrity. On October 10, 1985, the Petitioner, Billy Beeks, M.D., (Provider) executed a Medicaid Provider Agreement which provided, in pertinent part, as follows: The provider agrees to keep complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. . 8. The provider and the Department agree to abide by the provisions of the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Among the "manuals of the Florida Medicaid Program" referenced in paragraph 8 of the provider agreement was the Medicaid Physician Provider Handbook (hereinafter referred to as the "MPP Handbook"). Chapter 10 of the MPP Handbook addressed the subject of "provider participation." At the times pertinent to this proceeding Section 9 of Chapter 10 included the following: RECORD KEEPING You must retain physician records on services provided to each Medicaid recipient. You must also keep financial records. Keep the records for five (5) years from the date of service. Examples of the types of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and copies of sterilization and hysterectomy consents. Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. If time is a part of the procedure code prescription being billed, then duration of visit shown by begin time and end time must be included in the record. . Medicaid payments are based on billing codes and levels of services provided. In setting the appropriate billing to Medicaid, the level of service is determined pursuant to the MPP Handbook. At all times pertinent to this proceeding Section 1 of Chapter 11 of the MPP Handbook included the following pertaining to "covered services and limitations": HCPCS CODES and ICD-9-CM CODES Procedure codes listed in Chapter 12 are HCPCS (Health Care Financing Administration Common Procedure Coding System) codes. These are based on the Physician's Current Procedural Terminology, Fourth Edition. Determine which procedure describes the service rendered and enter that code and description on your claim form. HCPCS codes described as "unlisted" are used when there is no procedure among those listed that describes the service rendered. Physician's Current Procedural Terminology, Fourth Edition, Copyright . . . by the American Medical Association (CPT-4) is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. The Health Care Financing Administration Common Procedure Coding System (HCPCS) includes CPT-4 descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures and other materials contained in CPT-4 which are copyrighted by the American Medical Association. The Diagnosis Codes to be used are found in the International Classification of Diseases, 9th edition, Clinical Modifications (ICD-9- CM). A diagnosis code is required on all physician claims. Use the most specific code available. Fourth and fifth digits are required when available. All billings pertinent to this proceedings are for patient office visits. Prior to amendments effective January 1, 1992, the MPP also provided in Section 1, Chapter 11, for six levels of service associated with the office visit procedure code. These levels of service, in ascending order of complexity, are "Minimal, "Brief", "Limited", "Intermediate", "Extended", and "Comprehensive". The least amount paid by Medicaid to a provider was for a "Minimal" level office visit. The level of payment immediately above the "Minimal" level were the "Brief" and "Limited" levels, which entitled a provider to the same payment. Immediately above the "Brief" and "Limited" levels, in ascending order of payment, were "Intermediate", "Extended", and "Comprehensive". Section 1, Chapter 11 of the MPP contained the following discussion of the six levels of service: There are six levels of service associated with the visit procedure codes. They require varying skills, effort, responsibility, and medical knowledge to complete the examination, evaluation, diagnosis, treatment and conference with the recipient about his illness or promotion of optimal health. These levels are: Minimal is a level of service supervised by a physician. Brief is a level of service pertaining to the evaluation and treatment of a condition requiring only an abbreviated history and exam. Limited is a level of service used to evaluate a circumscribed acute illness or to periodically reevaluate a problem including a history and examination, review of effectiveness of past medical management, the ordering and evaluation of appropriate diagnostic tests, the adjustments of therapeutic management as indicated and discussion of findings. Intermediate level of service pertains to the evaluation of a new or existing condition complicated with a new diagnostic or management problem, not necessarily related to the primary diagnosis, that necessitates the obtaining of pertinent history and physical or mental status findings, diagnostic tests and procedures, and ordering appropriate therapeutic management; or a formal patient, family or a hospital staff conference regarding the patient's medical management and progress. Extended level of service requires an unusual amount of effort or judgment including a detailed history, review of medical records, examination, and a formal conference with the patient, family, or staff; or a comparable medical diagnostic and/or therapeutic service. Comprehensive level of service provides for an in-depth evaluation of a patient with a new or existing problem requiring the development or complete reevaluation of medical data. This service includes the recording of a chief complaint, present illness, family history, past medical history, personal review, system review, complete physical examination, and ordering appropriate tests and procedures. Chapter 11 of the MPP was amended, effective January 1, 1992. Instead of the six levels of service for office visits, five levels of service, referred to as "evaluation and management" (E/M) service codes were adopted. The E/M levels of service levels ranged from Level 1 to Level 5 in ascending order of complexity and payment. 1/ Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion as to the development of the E/M service codes: The American Medical Association, in cooperation with many other groups, replaced the old "visit" codes with the new "evaluation and management" (E/M) service codes in the 1992 CPT. This is a result of the Physician Payment Reform which requires the standardization of policies and billing practices nationwide to ensure equitable payment for all services. The new E/M codes are a totally new concept for identifying services in comparison to the old visit codes. They are more detailed and specific to the amount of work involved. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides that the level of E/M codes are defined by the following seven components: Extent of History, Extent of Examination, and Complexity of Medical Decision- Making, Counseling, Coordination of Care, Nature of Presenting Problem, and time. 2/ After determining whether the office visit is for a new or established patient, Section 1, Chapter 11 of the MPP, as amended January 1, 1992, instructs the provider to determine the level of E/M services by taking into consideration the following three key components: Extent of History, Extent of Examination, and Complexity of Medical Decision-making. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of History": There are four types of history which are recognized: Problem Focused - chief complaint; brief history of present illness or problem. Expanded Problem Focused - chief complaint; brief history of present illness; problem pertinent system review. Detailed - chief complaint; extended history of present illness; extended system review; pertinent past, family and/or social history. Comprehensive - chief complaint; extended history of present illness; complete system review; complete past, family and social history. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of Examination": There are four types of examinations which are recognized: Problem Focused - an examination that is limited to the affected body area or organ system. Expanded Problem Focused - an examination of the affected body area or organ system and other symptomatic or related organ systems. Detailed - an extended examination of the affected body area(s) and other symptomatic or related organ system(s) Comprehensive - a complete single system speciality examination or a complete multisystem examination. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Complexity of Medical Decision- Making": Medical decision-making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by the following factors: The number of possible diagnoses and/or the number of management options that must be considered. The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed. The risk of significant complications morbidity and/or mortality, as well as co- morbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. There are four types of medical decision- making which are recognized: straightforward, low complexity, moderate complexity, and high complexity. 3/ Rule 10C-7.047, Florida Administrative Code, 4/ pertains to the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT), and provides, in pertinent part, as follows: Purpose. EPSDT is a comprehensive, preventive health care program for Medicaid- eligible children under age 21 that is designed to identify and correct medical conditions before the conditions become serious and disabling. Medicaid provides payment for EPSDT which allows entry into a health care system, access to a medical home (sic) and preventive/well child care on a regular basis. This periodic medical screening includes a health and developmental history, an unclothed physical examination, nutritional assessment, developmental assessment, laboratory tests, immunizations, health education, dental, vision and hearing screens, and an automatic dental referral for children age 3 and over. A billing for an EPSDT screening is compensated by Medicaid at a rate that is higher than the rate for a Limited or Level 2 office visit. A provider must document all components of the EPSDT screening in order to be entitled to payment for the screening. If all components of the EPSDT screening are not documented by a provider's records, Medicaid compensates the provider for a Limited or Level 2 office visit since the provider would have made sufficient contact with the recipient to justify that billing level. When conducting an audit of a provider's billings to the Medicaid program, employees of Medicaid Program Integrity review the provider's medical records to determine whether the level of services billed are justified by the medical records. Medical records must contain sufficient documentation to substantiate that the recipient received necessary medical services at the level billed by the provider. A routine urinalysis performed during the course of an office visit should be billed as part of the office visit and not billed as a separate service. Vicki Divens, a registered nurse, is a consultant employed by the Agency and was administratively responsible for the audit of the Provider's medical records. She conducted this audit pursuant to the Agency's rules and policies. Ms. Divens obtained a report from Consultec, the Agency's fiscal agent, that provides identifying information as to all services that were billed to Medicaid by the Provider for the audit period of June 1, 1991, through May 30, 1993. This computer report reflects the date that each service was billed to Medicaid by the Provider, the name and Medicaid number of each recipient of the service, the codes which are used to describe the procedure of the service billed, the level of the service, the amount paid to the Provider, and the date of payment. For the audit period, there were a total of 1,712 Medicaid recipients who received services from the Provider, there were 9,054 separate billings for services to recipients, and there was a total of $259,305.01 paid by Medicaid to the Provider. The Agency is authorized 5/ to employ a statistical methodology to calculate the amount of overpayment due from a provider where there has been overstated billings. The methodology used by the Agency is a form of cluster sampling that is widely accepted and produces a result that is recognized as being statistically accurate. For the audit that is the subject of this proceeding, the Agency determined that 23 patient files would be the number of files necessary for the statistical analysis. The Agency established that sampling was adequate to perform the statistical analysis. The 23 recipients whose medical records would be analyzed were thereafter selected on a completely random basis. Ms. Divens obtained from the Provider the medical records for the 23 patients that had been randomly selected for analysis. A total of 141 separate billings had been made for these 23 recipients during the audit period and each of those billings had been paid to the Provider by the Medicaid program. The medical records for the 23 recipients were thereafter reviewed by Dr. John Sullenberger, the Florida Medicaid Program's Chief Medical Consultant, who made the determination as to whether the medical records in the sampling justified the level at which Medicaid had been billed for each of the services. Based on the overbillings found in the sampling, the Agency calculated an estimate of the overpayment for all Medicaid billings during the audit period by using a formula that is recognized as producing a statistically accurate result. When Dr. Sullenberger initially reviewed the Provider's medical records, several of the medical files for recipients in the sampling had not been located. Without these records to substantiate the billings for these patients, no credit was given for those services. The amount of the alleged overpayment for all recipients during the audit period was initially calculated to be $60,753.25, which is the amount claimed in the Agency's final audit report letter dated December 13, 1993. Thereafter additional records were furnished to the Agency by the Provider and the alleged overpayment was recalculated to be $50,852.86, which is the amount the Agency asserted as being the amount of the overpayment at the beginning of the formal hearing. 5/ The following findings are made as to the billings that were in dispute at the formal hearing. The date of birth is given for each recipient to help identify the recipient. For office visits before January 1, 1992, the level of services are described as being "Minimal," "Brief," "Limited," "Intermediate," "Extended," or "Comprehensive." For office visits after January 1, 1992, the level of services are described as being Level 1, Level 2, Level 3, Level 4, or Level 5. Patient 1 was born January 22, 1989. There were four billings for this patient at issue in this proceeding. On November 19, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 29, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 21, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 2 was born September 29, 1985. There were five billings for this patient at issue in this proceeding. On August 31, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On September 3, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 26, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 3 was born May 9, 1985. There were two billings for this patient at issue in this proceeding. On May 22, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 20, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 4 was born March 20, 1968. There was one billing for this patient at issue in this proceeding. A. On July 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 5 was born April 28, 1988. There were three billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 3, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 6 was born February 7, 1987. There was one billing for this patient at issue in this proceeding. A. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 7 was born February 25, 1987. There were two billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient and he also billed for a urinalysis. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level and that the billing for the urinalysis should be included as part of the Limited level office visit. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 8 was born July 11, 1988. There were three billings for this patient at issue in this proceeding. On September 10, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level and he billed separately for an urinalysis for this patient during this visit. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate and that the urinalysis should be included in this billing. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 23, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 9 was born January 9, 1989. There were four billings for this patient at issue in this proceeding. On August 23, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 20, 1992, the Provider billed Medicaid for services rendered to this patient at Level Four. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 21, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 10 was born August 30, 1988. There were three billings for this patient at issue in this proceeding. On September 4, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 21, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 11 was born September 17, 1989. There were fifteen billings for this patient at issue in this proceeding. On June 3, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 6, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Dr. Leterman was of the opinion that the medical records justified the Intermediate level billing (Leterman deposition, page 30), but Dr. Sullenberger testified the billing should be at the Limited level (Transcript, page 171). This conflict is resolved by finding that the medical records justify this billing at the Intermediate level so that no adjustment is necessary. On July 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 5, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 30, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. (See, Leterman deposition, page 34) On January 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 9, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 3, 1993, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 12 was born July 12, 1970. There were four billings for this patient at issue in this proceeding. On January 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 10, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 13 was born August 22, 1990. There was one billing for this patient that was initially at issue in this proceeding. On August 22, 1990, the Provider billed Medicaid for an EPSDT for this patient. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Limited level office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at a Limited level. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing as an EPSDT, so that no adjustment was necessary. Based on his testimony, it is found the medical records maintained by the Provider justify this billing and no adjustment is necessary. Patient 14 was born October 23, 1990. There were nine billings for this patient at issue in this proceeding. On September 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 11, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 21, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 17, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 31, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 19, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 4, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 15 was born November 9, 1990. There was one billing for this patient at issue in this proceeding. A. On September 24, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 16 was born September 14, 1991. There were two billings for this patient at issue in this proceeding. On March 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 1, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 17 was born February 9, 1992. There were two billings for this patient at issue in this proceeding. On November 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on that testimony, it is found that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 18 was born July 6, 1992. There were six billings for this patient at issue in this proceeding. On August 12, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 17, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 4. 6/ The Provider received an overpayment from the Medicaid program as a result of this billing. On September 18, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 9, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 3. 7/ The Provider received an overpayment from the Medicaid program as a result of this billing. On November 5, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 18, 1992, the Provider billed Medicaid for services rendered to this patient at the Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on the testimony of Dr. Sullenberger and that of Dr. Leterman, it is found that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 19 was born June 12, 1989. There was one billing for this patient at issue in this proceeding. A. On February 9, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 20 was born May 18, 1987. There was one billing for this patient at issue in this proceeding. A. On July 27, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 21 was born April 27, 1988. There were four billings for this patient at issue in this proceeding. On January 12, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 17, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. March 8, 1993, the Provider billed Medicaid for services rendered to this patient at the Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 16, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 22 was born August 10, 1992. There were three billings for this patient at issue in this proceeding. On December 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 9, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 22, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 23 was born May 23, 1993. There was one billing for this patient at issue in this proceeding. A. On May 26, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3 The Provider received an overpayment from the Medicaid program as a result of this billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order that adopts the findings of fact and conclusions of law contained herein and that the Agency recalculate the total amount of the overpayment during the audit period based on the findings of fact contained herein. DONE AND ENTERED this 23rd day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1995.
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 Whether Respondent, a Medicaid provider, committed the violations alleged in the agency action letter dated March 14, 2011, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook (the General Handbook). The General Handbook requires a provider to have medical documentation that justifies the necessity of services provided to a recipient. The General Handbook advises that sanctions may be imposed if appropriate documentation is not kept. Respondent is an "Assistive Care Services" provider under the Florida Medicaid Program and is required to comply with the "Assistive Care Services Coverage and Limitation Handbook" (ACS Handbook). The ACS Handbook requires that each recipient of Assistive Care Services from the Florida Medicaid Plan have a RSP, and provides, in relevant part (at Petitioner's Exhibit 7, page 39): Every [Assistive Care Services] recipient must have a service plan completed by the [Assistive Care Services] service provider. . . . The ALF [is] responsible for ensuring the service plan is developed and implemented. The ACS Handbook further requires (at Petitioner's Exhibit 7, page 40): The Resident Service Plan for Assistive Care Services (AHCA-Med Serv [sic] Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing, and based on information contained in the health assessment. . . . The ACS handbook further provides (at Petitioner's Exhibit 7, page 40), that both the recipient (or the recipient's guardian or designated representative) and the ALF administrator (or the person designated in writing by the administrator) must sign and date the RSP. The RSP is considered complete as of the last date signed by either party. The provider (in this case Respondent) is responsible for timely completing the RSP for each Medicaid recipient in its facility. Inspector Marie Josue conducted an on-site visit to Respondent's premises on February 1, 2011. At the time of that inspection, Respondent reviewed a sample of ten RSPs for ten residents who received Assistive Care Services from the Florida Medicaid Program. Two of those ten RSPs had been timely signed and dated by the resident (or the resident's guardian or designee) and by Respondent's administrator (or the administrator's designee). The remaining eight RSPs had been timely signed and dated by the resident (or the resident's guardian or designee), but each had not been signed or dated by Respondent's facility administrator (or the administrator's written designee). Each RSP pre-dated February 1, 2011, by more than 15 days. The respective health assessments that formed the basis for each RSP occurred between March 23 and December 25, 2010. Respondent subsequently provided Ms. Josue with certain records that she had requested, including copies of the eight RSPs at issue in this proceeding. When she reviewed those records, Ms. Josue discovered that Respondent's administrator had signed and dated each previously unsigned RSP on February 1, 2011. Those signings by the administrator were untimely. Ms. Josue forwarded the results of her investigation to Mr. Dozier with a recommendation that Respondent be sanctioned for violating the provisions of section 409.913(15)(e), Florida Statutes, by the imposition of a $1,000.00 fine for each of the eight violations pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). When she made her recommendation, Ms. Josue understood that the cited rule required a minimum fine of $1,000.00 per violation. Mr. Dozier accepted that recommendation and prepared the agency action letter dated March 14, 2011. Mr. Dozier consulted with two of his fellow administrators before concluding that the fine recommended by Ms. Josue was appropriate. He testified that he could have charged Respondent with violating section violating section 409.913(15)(d), which could have resulted in an administrative fine in the amount of $20,000.001/ Mr. Dozier considered an administrative fine in the amount of $8,000.00 to be more appropriate. Based on services provided to Medicaid patients pursuant to approved RSPs, Respondent submits claims to the Florida totaling between $6,450.00 and $9,200.00 per month. Petitioner routinely pays those claims. Each RSP at issue in this proceeding complied with the ACS Handbook except for the failure of the facility administrator (or designee) to timely sign the eight RSPs. RSPS are the guides to the services that will be provided by Respondent and reimbursed by the Medicaid Program by Petitioner. The requirement that the administrator (or designee) sign each plan is an effort to combat fraud. There was no evidence that the failure to sign the eight plans at issue in this proceeding was more than an error. Specifically, there was no evidence of fraud. There was no allegation that the lack of the administrator's signature on the eight plans at issue had any effect on the care provided to the eight Medicaid patients. Ms. Pace has been Respondent's administrator for over 13 years. Ms. Pace is familiar with RSPs and the rules and regulations governing the Florida Medicaid Program. Ms. Pace knew that the RSPs must be completed within 15 days of the assessment by a physician. Ms. Pace knew that the patient (or designee) and the administrator (or designee) must sign the RSP for it to be complete. Ms. Pace acknowledged that the eight RSPs at issue in this proceeding were not signed by anyone on behalf of the provider until February 1, 2010. Ms. Pace had designated a subordinate to sign the eight PSAs at issue in this proceeding on behalf of the provider. She had no explanation why those RSPs were not timely signed by anyone on behalf of the provider.
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 finding La Hacienda Gardens, LLC, guilty of the eight violations of section 409.913(15)(e) alleged in the agency action letter dated March 14, 2011. It is further recommended that the final order impose administrative fines in the amount of $1,000.00 per violation for a total of $8,000.00. S DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of February, 2012.
