The Issue Whether Petitioner's Medicaid provider number should be cancelled for the reason stated in Respondent's October 1, 1995, letter to Petitioner?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a provider of community mental health services. It provides these services to residents of Palm Beach County and the surrounding areas. Some of the services it provides are unique to the area it serves. Petitioner provides services to Medicaid recipients pursuant to a Medicaid provider agreement dated September 6, 1994, paragraphs 8 and 9 of which provide as follows: The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Depart- ment may terminate this agreement in accordance with Chapter 120, Florida Statutes. Petitioner has attempted to enter into a contract with the Department of Health and Rehabilitative Services' Alcohol, Drug Abuse and Mental Health office (hereinafter referred to as "ADM"), but to date has been unable to do so because ADM has not had the money to fund such a contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Petitioner's provider agreement and cancelling its provider number on the grounds that it "does not have a contract with the [Department of Health and Rehabilitative Services] ADM [Alcohol, Drug Abuse and Mental Health] office." DONE and ENTERED this 26th day of February, 1996, at Tallahassee, Leon County, Florida. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. COPIES FURNISHED: Darlene Silvernail, Esquire Forest Hill Counseling Center 2624 Forest Hill Boulevard West Palm Beach, Florida 33406 Gordon B. Scott, Esquire Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the" day of le , 2013, in Tallahassee, Leon County, Florida. ‘LM, fo: ABETH DUDEK, SECRETA “Agency for Health Care Administration 1 Filed May 8, 2013 11:26 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Mario Rub, M.D. Pediatric Pulmonologist 20776 W. Dixie Highway Aventura, Florida 33180 (Via U.S. Mail) Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Willis F. Melvin Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Via Electronic Mail) Ken Yon, Acting Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) DOH (via email) License number ME69331 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the 5 day of By » 2013. —) Richard Shoop, Esqu: Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 ire STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH Case No.: 13-0129MPI AHCA CLI. No.: 12-1694-000 MARIO RUB, M.D., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “the Agency”), and MARIO RUB, M.D. (“PROVIDER”), by and through the undersigned, hereby stipulates and agrees as follows: 1. This Agreement is entered into for the purpose of memorializing the final resolution of the matters set forth in this Agreement. 2. PROVIDER is a Medicaid provider (Medicaid Provider No. 256291000) and was a provider during the audit period, September 1, 2008 to February 28, 2011. 3. In its final audit report (FAR) dated November 13, 2012 for the case referenced as C.I. No. 12-1694-000, AHCA notified PROVIDER that review of Medicaid claims performed by Medicaid Program Integrity (MPI) indicated that, in its opinion, some claims in whole or in part had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $14,039.92. In response to the FAR, PROVIDER filed a petition for a formal administrative hearing. It was assigned DOAH Case No. 13-0129MPI. 4. Subsequent to the original audit, and in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $5,752.06 plus $1,154.41 in fines and $1,659.66 in costs for a total due of $8,566.13. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA expressly agree as follows: (1) AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is five thousand seven hundred fifty-two dollars and six cents ($5,752.06) on the indebtedness, one thousand one hundred fifty-four dollars and forty-one cents ($1,154.41) in fines, plus one thousand six hundred fifty-nine dollars and sixty-six cents ($1,659.66) in investigative costs for a total of eight thousand five hundred sixty-six dollars and thirteen cents ($8,566.13). PROVIDER will make an initial payment of one thousand seven hundred thirteen dollars and twenty-three cents ($1,713.23) followed by eleven (11) monthly payments of six hundred two dollars and forty- eight cents ($602.48) and one final payment of six hundred two dollars and forty- six cents ($602.46). The first payment will be due beginning thirty (30) days after the Final Order date. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 12-1694-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. 6. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.J. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $1,659.66 in Agency costs and $1,154.41 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 12. | This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or 4 incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. | This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK MARIO RUB, M.D. Printed Representativé$ Name BY. Nacio buh, 305 0060381 DEA BR 4969664 20776 W. DDGE HWY. AVENTURA, FL 33180 (905) 931-1812 + FAX (305) 931-1632 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Wl « CC mMmActeR General Counsel Aoegack dll Chief Medicaid Counsel hy. Willis F. Melvin, Jr. Assistant General Counsel Dated: Dated: Dated: Dated: Dated: 2| \3 , 2013 S/3 ,2013 r// 2 ,2013 3 5 2013 Februany LF ,2013 RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION GOVERNOR Better Health Care for all Floridians CERTIFIED MAIL No.:7009 2820 0001 5671 9368 November 13, 2012 Provider No: 2562910-00 NPI No: 1790889996 License No.:ME69331 Mario Rub, M.D. 20776 West Dixie Highway North Miami Beach, Florida 33180 In Reply Refer to FINAL AUDIT REPORT C.L: No. 12-1694-000 Dear Provider: ELIZABETH DUDEK SECRETARY The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period September 1, 2008, through February 28, 2011. A preliminary audit report dated July 16, 2012, was sent to you indicating that we had determined you were overpaid $279,132.60. Based upon a review of all documentation submitted, we have determined that you were overpaid $14,039.92 for services that in whole or in part are not covered by Medicaid. A fine of $2,807.98 has been applied. The cost assessed for this audit is $1,359.66. The total amount due is $18,207.56. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G- 9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $2,807.98 for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 2 This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment ofan illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, were insufficient to justify billing for code indicated. The documentation failed to meet the Medicaid criteria for medical necessity. The claims were either disallowed or adjusted by the peer to reflect service documented. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 173 claims was reviewed. For those claims in the sample, which have dates of service from September 1, 2008, through February 28, 2011, an overpayment of $846.51 or $4.89312139 per claim, was found. Since you were paid for a total (population) of 3,994 claims for that period, the point estimate of the total overpayment is 3,994 x 4,89312139 = $19,543.13. There is a 50 percent probability that the overpayment to you is that amount or more. We used the following statistical formula for cluster sampling to calculate the amount due the Agency: E- oe) ses 4 - -YB,y Where: N N E = point estimate of overpayment = SA, > B | Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 3 U F = number of claims in the population = s B is] A, = total overpayment in sample cluster B, = number of claims in sample cluster U =number of clusters in the population N = number of clusters in the random sample N N Y = mean overpayment per claim = > A, > B, i=] j= t = t value from the Distribution of ¢ Table All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $14,039.92, with a ninety-five percent (95%) probability that it is that amount or more. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $18,207.56, which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.J. number listed on the first page of this audit report. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 4 Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that ifa request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: : Jennifer Ellingsen, Investigator, Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412- 4600, facsimile (850) 410-1972. Sincerely, Se Be Fred Becknell AHCA Administrator Office of Inspector General Medicaid Program Integrity FB/jse Enclosure(s) Copies furnished to: Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 5 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The request must be legible, on 8 % by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. Fora request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 256291000 - MARIO RUB Overpayment Calculation Using Cluster Sampling by Recip Name Dates Of Service: 9/1/2008 through 2/28/2011 Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Totals: Using Overpayment per claim method Overpayment per sample claim: Point estimate of the overpayment: Variance of the overpayment: Standard error of the overpayment: Half confidence interval: Overpayment at the 95 % Confidence level: Overpayment run on 11/9/2012 COON ADH RWHNA 600 35 $1,083,860.97 3,994 $4.89312139 $19,543.13 $10,592,145.98 $3,254.56 $5,503.21 $14,039.92 33 FP NN FB HOMER ANNA aNWaAn = =a nN 173 Case ID: Confidence level: t value: $228.96 $145.15 $281.20 $121.92 $153.25 $68.64 $747.83 $228.96 $121.92 $168.96 $28,469.80 $76.70 $87.60 $236.70 $2,803.99 $229.95 $297.69 $171.41 $87.60 $129.39 $259.20 $3,257.45 $234.17 $87.60 $251.87 $75.97 $57.55 $34.32 $693.77 $87.60 $173.92 $87.60 $20,625.31 $121.92 $75.97 $60,981.84 Page 4 of 4 NPI: 1790889996 12-1694-000 95 % 1.690924 $0.00 $0.00 $117.70 $0.00 $0.00 $52.55 $194.73 $0.00 $0.00 $0.00 $126.76 $19.16 $0.00 $38.32 $0.00 $0.00 $38.30 $0.00 $0.00 $41.79 $54.28 $0.00 $68.75 $0.00 $0.00 $0.00 $0.00 $0.00 $94.17 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $846.51 Page 1 of 1) ( | SENDER: COMPLETE THIS SECTION ® Complete Items 1, 2, and 3. Also complete Htam 4 If Reatricted Delivery Is desired, @ Print your name and address on the reverse 80 that we can return the card to you. ® Attach this card to the back of the malipisce, ot aathn dront. Ihsvares. rete pew ™ Attach this card to the back of the mallplece, or on the front If space permits, 1. Article Addressed to: &. Hecwived by ( Printed Name) D. Is delivary address different from item 17 1 Yes IC YES, enter delivery address below: = No Mario Rub, M.D. '" 20776 West Dixie Highwa: . 'y 3. Service Type North Miami Beach, Florida 33180 Centtied Mat ©) Express Mail Cl. # 12+1694-000 JE-re Ci Regletered —-C) Return Recelpt for Merchandlee - D Insured Mall = 6.0.0, 4, Restricted Delivery? 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The Issue Whether Respondent was overpaid $237,802.50 for services that in whole, or in part, are not covered by Medicaid because the services were performed by rendering providers who did not have the requisite education or work experience to meet the eligibility requirements in the Behavior Analysis Services Coverage Handbook (“BA Handbook”) to perform the services or for whom documentation was insufficient to determine eligibility; and, if so, the amount of the overpayment to be repaid, the amount of any fine to be imposed against Respondent, and the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
Findings Of Fact This case involves a Medicaid audit by AHCA of Respondent, which relates to dates of service from November 1, 2017, through December 31, 2018 ("audit period"). During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 017421300. As an enrolled Medicaid provider, Respondent was subject to the duly- enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is designated the "Medicaid Program." See § 409.902, Fla. Stat. AHCA has the responsibility for overseeing and administering the Medicaid Program for the State of Florida, pursuant to section 409.913, Florida Statutes. AHCA’s Bureau of Medicaid Program Integrity (MPI), pursuant to its statutory authority, conducted an audit of Respondent of paid Medicaid claims for services to Medicaid recipients. Medicaid claims are paid under what is known as a “pay and chase” system. Claims are quickly paid under the presumption the provider is billing in accordance with Medicaid law and rules. When paid claims are later audited and AHCA finds non-compliant claims, the payments are deemed overpayments and AHCA requests reimbursement. Section 409.913 allows MPI to audit for fraud and abuse. Abuse includes “[p]rovider practices that are inconsistent with generally accepted business…practices and that result in an unnecessary cost to the Medicaid program….” See § 409.913(1)(a)1., Fla. Stat. All Florida Medicaid providers are required to maintain, for at least five years, “contemporaneous documentation of entitlement to payment, including employment eligibility, compliance with all Medicaid Rules, regulations, handbooks and policies.” This includes business records, Medicaid-related records and medical records. See § 409.913(7)(e) and (f), Fla. Stat. A provider’s failure to document, in accordance with Medicaid handbooks and the Provider Enrollment Agreement, whether its rendering providers met the criteria to provide services, as stated in the promulgated handbook, is inconsistent with generally accepted business practices. Behavior analysis services are “highly structured interventions, strategies, and approaches provided to decrease maladaptive behaviors and increase or reinforce appropriate behavior for persons with mental health disorders, and developmental or intellectual disabilities.”1 Medicaid coverage for these services is limited to children under the age of 21. Behavior analysis 1 See Section 1.0 “Introduction” of Florida Medicaid Behavior Analysis Services Coverage Policy (October 2017); Fla. Admin. Code R. 59G-4.125. recipients are a vulnerable population, consisting of individuals that have mental health disorders, and intellectual and developmental disabilities, including, but not limited to, autism and Down Syndrome. They often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve. For these reasons, persons entrusted to provided critical services must meet the minimum qualifications. To provide appropriate services to this vulnerable population, BAs are required to meet the criteria set forth in Section 3.2 of the BA Handbook, incorporated by reference in Florida Administrative Code Rule 59G-4.125, “Behavior Analysis Services,” as amended, October 29, 2017. The BA Handbook requires a BA to have “a bachelor’s degree from an accredited university or college in a related human service field” and an agreement to become a Registered Behavior Technician (“RBT”) by 1/1/19; or, alternatively: (1) be at least 18 years old; (2) have a high school diploma; (3) have “at least two years of experience providing direct services to recipients with mental health disorders, developmental or intellectual disabilities”; and (4) have at least “20 hours of documented in-service trainings in the treatment of mental health, developmental or intellectual disabilities, recipient rights, crisis management strategies and confidentiality.” AHCA’S AUDIT This audit was opened in follow-up to AHCA’s statewide review of behavior analysis services. The assessment of these services revealed rampant fraud and abuse within the behavior analysis program including more than twice as many providers as recipients, providers billing unbelievable hours (such as more than 24 hours per day), and unsubstantiated qualifications, meaning that patients were receiving BA services from unqualified providers. Based on information obtained in the statewide behavior analysis review, AHCA issued a moratorium regarding new enrollments in Southeast Florida and chose a number of providers for audits. Respondent was selected for audit. Petitioner audited Respondent's records related to paid claims from November 1, 2017, through December 31, 2018. This audit period was selected because an updated Behavior Analysis Handbook was promulgated and became effective October 29, 2017.2 AHCA’s review of Respondent's records consisted of identifying the rendering providers for whom Respondent provided insufficient or no documentation to support their qualifications to render behavior analysis services. The parties stipulated that none of the rendering providers at issue had both a bachelor’s degree “in a related human services field” and had obtained their RBT by January 1, 2019. Respondent and AHCA also stipulated that the records for each rendering provider indicate they were at least 18 years old and had obtained at least a high school diploma or its equivalent. The only questions that remained was did the BA provider have the requisite two years of experience with the target population and did they have 20 hours or more of the required applicable in-service training. During the Audit Period, Respondent submitted claims for services rendered by 169 rendering providers, for which Medicaid paid Respondent a total of $3,999,828.65. Based on the audit, Petitioner initially determined Respondent had been overpaid in the amount of $1,060,590.41. AHCA issued a Preliminary Audit Report (“PAR”) dated March 25, 2019, notifying Respondent of the rendering providers deemed not qualified and the amount 2 During the MPI audit period, Respondent was placed under pre-payment review by a different section of AHCA. Respondent stopped billing during the audit period and its Medicaid provider number was terminated without cause in October 2018. As such, although the audit period was from November 1, 2017, through December 31, 2018, the last claims reviewed in the audit were for date of service March 28, 2018, as that was the date of the last paid claim. of the overpayment associated with each. Respondent was given the opportunity to pay the PAR amount or submit additional records. In response to the PAR, Respondent submitted additional records. Based on the those additional records, AHCA issued a FAR dated July 19, 2019, alleging Respondent was overpaid $905,838.36 for BA services it billed for 41 BA rendering providers who did not meet the criteria specified in the BA Handbook. In addition, the FAR informed Respondent that AHCA was seeking to impose a sanction of $2,500.00 pursuant to rule 59G-9.070(7)(c), and costs of $1,280.00 pursuant to section 409.913(23)(a). In sum, Petitioner asserted in the FAR that Respondent owed a total of $909,618.36. Kathy Herold is a Senior Pharmacist with AHCA’s MPI unit. In that capacity she assists with MPI audits. She compiles and analyzes data; applies appropriate rules, regulations, policies, and procedures to oversee the activities of Florida Medicaid providers to detect fraudulent or abusive behavior and minimize the neglect of recipients; recovers overpayments; imposes sanctions; and makes referrals as appropriate to the Florida Attorney General’s Medicaid Fraud Control Unit, the Florida Department of Health, and the Florida Department of Business and Professional Regulation. She has over seventeen years’ experience in administrative investigations. She is a Certified Fraud Examiner. Ms. Herold re-reviewed the records provided by Respondent to determine whether the rendering providers for whom behavior analysis services were billed met the qualifications. AHCA did not place any limitations on how Respondent documented the qualifications of its rendering providers. AHCA’s only concern was whether the criteria were met. During the audit, and through the discovery process, Respondent supplied AHCA with copies of employment applications, resumes, letters of recommendation, and training certificates of the BAs in question. At the time of the final hearing, the qualifications of only 14 BAs remained in dispute and the amount sought in overpayment was calculated by AHCA as $237,802.50. Based on the competent, substantial, and persuasive evidence, AHCA demonstrated that the audit was properly conducted. RENDERING PROVIDERS AT ISSUE Eduardo Rodriguez The resume for Eduardo Rodriguez lists work with Abreu Quality (“Abreu”) from 2017 to “present.” It does not indicate a job title or reference any work with the target population in that job. There is no contact information that would have allowed Respondent the opportunity to verify the alleged work experience. The resume also lists “Private Case” work with a child with disabilities from 2010-2014 and 2016-2017. There is no contact information that would have allowed Respondent the opportunity to verify the alleged work experience. The application for Mr. Rodriguez, dated December 27, 2017, Mr. Rodriguez lists BA work with Abreu from February 2017 to “present” (December 27, 2017). While that listing (unlike the resume) contains contact information that would have allowed Respondent the opportunity to verify the alleged work experience, that work, even if verified, did not meet the requisite work experience as it was at most ten months. The application also lists two BA jobs for “Private Case.” There is no information provided that would have allowed Respondent the opportunity to verify the alleged work experience met the requisite work experience or the target population requirements. One private job was from 2010-2014 and the other was from 2016-2017 The documents submitted to AHCA by Respondent contained a letter of recommendation by Felicia Noval. That letter makes no reference to work with the target population. There is no indication who Ms. Noval is or how she knows Mr. Rodriguez. The documents submitted to AHCA by Respondent contained a letter of recommendation by Jose Chao. However, that letter contains no indication of work with the target population. There is no indication of who Mr. Chao is or how he knows Mr. Rodriguez. The documents submitted to AHCA by Respondent contained a background screening requested by Respondent. The background screening indicates that Mr. Rodriguez was not eligible to work with the target population until April 2017. Because Respondent requested the screening, it knew or should have known that Mr. Rodriguez did not have the requisite work experience. Based on conflicting information as to when Mr. Rodriguez worked at Abreu, Ms. Herold reviewed documentation submitted by Abreu to AHCA. This documentation indicates that Mr. Rodriguez only worked for them from May 18, 2017, to June 17, 2017. The documents submitted by Respondent to AHCA for Mr. Rodriguez contained training certificates for both the 20-hour BA course and the 40- hour RBT course. Mr. Rodriguez began working for Respondent on February 8, 2018. The last paid claim for Mr. Rodriguez was March 23, 2018. Based on the documentation provided by Respondent, Mr. Rodriguez did not have documented requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period. Despite Respondent having documentation that Mr. Rodriguez satisfied the training requirement, payments made by AHCA to Respondent for services billed for him are an overpayment because he did not have the requisite work experience or there is insufficient documentation that he had the requisite work experience. Fanny Vargas The application for Fanny Vargas, dated March 1, 2017, lists work as a BA/AHH for Children’s Home Services (“CHS”) from 2015-2017. There is no indication of how long Ms. Vargas performed each function. There is no indication of work with the target population in the job as an AHH. There is insufficient information to determine how long Ms. Vargas worked for CHS. The application did not provide sufficient information regarding whether Ms. Vargas had the requisite work experience. The resume for Ms. Vargas only lists BA work with CHS from 2015- “still working” (presumably March 1, 2017, the date of the application). There is still insufficient information on the resume to determine when Ms. Vargas began at CHS or if Ms. Vargas worked at CHS for over two years. The resume also lists “private service” for children with special needs from 2012- 2015. The “private service” job was not listed on the application. There is no contact information listed on the resume for the “private service” job that would have allowed anyone to verify it. The resume did not provide sufficient information regarding whether Ms. Vargas had the requisite work experience. The documents submitted to AHCA by Respondent indicate Ms. Vargas was not screened as a Medicaid Provider until January 14, 2017. She was enrolled as a Medicaid provider on April 4, 2017, effective January 9, 2017. She could not have provided services to the target population with CHS before then. The date of service for the last paid claim for Ms. Vargas is December 31, 2017. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Vargas had the requisite work experience at the time of hire, at the beginning of the audit period or by the end of the audit period, or that she satisfied the training requirement. Javier Collazo Veloz The application for Javier Collazo Veloz, dated May 4, 2017, lists work as Private Practice BA in Miami for Melissa Catano, from “08/01/2016–” (presumably May 4, 2017) and BA work for Fe y Alegria in Ecuador from March 9, 2015–April 3, 2016. Combined, those jobs do not satisfy the requisite work experience. The resume for Mr. Collazo Veloz only lists work as a BA for Fe y Alegria. However, on the resume the dates of employment are listed as July 1, 2013–July 1, 2015. Those dates conflict with the information Mr. Collazo Veloz listed on his application. Based on the conflict regarding the work with Fe y Alegria, Ms. Herold attempted to verify it. She located a website for Fe y Alegria, but the website makes no mention of work with the target population. The last paid claim for Mr. Collazo Veloz was February 16, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Mr. Collazo Veloz had the documented requisite work experience at the time of hire, at the beginning of the audit period or by the end of the last paid claim in the audit period, or that he satisfied the training requirement. Jorge N. Bernal The application for Jorge N. Bernal, dated March 29, 2017, lists work as an x-ray technician from April 15, 2015, to July 17, 2015. There is no indication of work with the target population and the nature of that work would not contribute to the requisite work experience. Overlapping with the x-ray technician job, Mr. Bernal also lists he was a teacher at Jesus Para Todos from December 1, 2012, to March 15, 2016. The resume makes no mention of work with the target population associated with that job and there is no contact information on the application that Respondent could have used to verify the alleged work experience. The resume for Mr. Bernal only lists the teacher job at Jesus Para Todos, but there is no contact information to verify the employment. The resume indicates that job involved work with the target population. The documents submitted to AHCA by Respondent contained numerous documents indicating Mr. Bernal was born June 16, 1993. That means that Mr. Bernal was purportedly “teaching” when he was only 17. The documents submitted to AHCA by Respondent also contained an honor roll certificate which indicates that Mr. Bernal was attending college while purportedly “teaching.” The documents submitted to AHCA by Respondent post-PAR contained a letter of reference from International Ministry of Jesus for All (“Jesus Para Todos”) dated March 19, 2019. That letter does not clearly corroborate that Mr. Bernal was teaching there. The letter from Jesus Para Todos indicated it was a church, not a school. The letter further indicates that Mr. Bernal “was able to serve to the kid’s ministry and youth groups, teaching kids and youth and serving in our community, and participate in helping special need kids in our church.” Mr. Bernal began work for Respondent on November 7, 2017. The last paid claim for Mr. Bernal is February 17, 2018. Thus, not only could the letter from Jesus Para Todos not have been used to verify work in the hiring process, it also was not created until after the audit period and almost one year after the end of Mr. Bernal’s employment with Respondent. Given the conflicting information regarding Jesus Para Todos, Ms. Herold attempted to verify the facility. She discovered there was no online presence for the facility, and it was not listed in the State’s database of private schools or licensed daycares. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Mr. Bernal had the requisite work experience at the time of hire, at the beginning of the audit period or by the end of the last paid claim in the audit period, or that he satisfied the training requirement. Leyanis Morffi The application for Leyanis Morffi, dated June 30, 2017, lists two cashier jobs. The nature of that work would not contribute to the requisite work experience. The application also lists work as a paid childcare worker at Smiles Childcare from October 2014 to November 2016. However, there is no mention of work with the target population at that job. The resume for Ms. Morffi lists the same work experience that was listed on the application. Again, there is no reference to work with the target population at the childcare job. The resume further indicates that Ms. Morffi “specializes in homes for the elderly and youth detention facilities.” However, there is no listing of that type of work on the application or resume. The documents submitted to AHCA by Respondent contained a background screening requested by Respondent. The screening indicates that Ms. Morffi was not eligible to work with the target population until February 2017. Because Respondent requested the screening, it knew or should have known that Ms. Morffi did not have the requisite work experience. Documents submitted to AHCA by Respondent contained a letter of reference dated September 5, 2017, from Lazaro Noel Suarez. That letter is dated post-hire and was provided to AHCA post-PAR. It references one year of BA work. However, it provides no specific dates or date range, and contains no contact information that could be used to verify the information. Neither the application nor the resume indicates any BA work prior to Respondent to which this letter could correlate. Documents submitted to AHCA by Respondent contained a letter of reference dated July 30, 2017, from Doris Jimenez. That letter is dated post- hire and was provided to AHCA post-PAR. It makes no reference to work with the target population. It makes no mention of the relationship between Ms. Morffi and Ms. Jimenez. The letter does not indicate where the work was performed. Documents submitted to AHCA by Respondent contain a letter of reference dated April 5, 2018. The author is unknown as the signature is illegible. That letter is dated post-hire and was provided to AHCA post-PAR. It references work at Smiles Childcare from October 2014 to May 2017. While the letter mentions work with the target population, there is no way to determine who wrote the letter or the author’s relationship to Ms. Morffi. The letter contains no contact information that could be used to verify the information. The dates of service in the letter conflict with the dates of service listed by Ms. Morffi in her application and resume. The letter indicates that Ms. Morffi was a volunteer, while her application indicates she earned $10.00 per hour. While volunteer work would count toward requisite work experience, the conflicting information undermines the credibility of both this letter and the information provided by Ms. Morffi. Based on the conflicting information regarding Smiles Childcare, Ms. Herold attempted to verify the information. Smiles Childcare had no internet website and was not listed by the State as a childcare facility. The last paid claim for Ms. Morffi is March 16, 2018. Not only could the April 5, 2018, letter not have been used to verify work in the hiring process, it also was not created until after the audit period and over two weeks after the end of Ms. Morffi’s employment with Respondent. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Morffi had the documented requisite work experience at the time of hire, at the beginning of the audit period or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Luigui Melendez Tijerino The application for Luigui Melendez Tijerino, dated January 30, 2017, lists overlapping work as a Pharmacy Tech at Walmart from June 2012 to “present” (presumably the date of the application) and as a food prepper at Wendy’s from October 2013 to June 2014. There is no indication of work with the target population and the nature of those jobs would not contribute to the requisite work experience. Overlapping with the Pharmacy technician job, Mr. Melendez Tijerino also listed BA work with ABA Pro Support Services (“ABA Pro Support”) from May 2015 to January 31, 2017. The resume for Mr. Melendez Tijerino lists the same jobs as indicated on the application and also lists work as a server at “The Chelsea” from April 2011 to September 2013. There is no indication of work with the target population and the nature of that job would not contribute to the requisite work experience. Documents submitted to AHCA by Respondent contain a background screening requested by Respondent. The screening indicates that Mr. Melendez Tijerino was not eligible to work with the target population until October 2016. Because Respondent requested the screening, it knew or should have known that Mr. Melendez Tijerino did not have the requisite work experience. Documents submitted to AHCA by Respondent contain an undated letter of reference from Xochilt Povsic.3 That letter was provided to AHCA post-PAR. That letter references work with the target population, but it does not mention any dates that would allow anyone to determine if it satisfied the requisite work experience. The letter does not mention where the BA services were allegedly performed, and the only indication of BA work on Mr. Melendez Tijerino’s application and resume was at ABA Pro Support. Based on the conflicting information regarding work at ABA Pro Support, Ms. Herold looked further into the matter. In response to the letter sent to ABA Pro Support for the BA statewide review, ABA Pro Support advised that Mr. Melendez Tijerino was never an employee. That information was provided to AHCA on January 12, 2018. 3 Ms. Povsic is another rendering provider at issue in the audit. Ms. Povsic may be or may have been related to Mr. Melendez Tijerino as the documents submitted by Respondent for her indicate she used to be called Xochilt Tijerino. Documents submitted to AHCA by Respondent contain a letter of reference dated September 23, 2016, from Walmart, that was provided to AHCA post-PAR. That letter does not reference work with the target population and the nature of the job would not contribute to the requisite work experience. Mr. Melendez Tijerino began working for Respondent on November 1, 2017. The last paid claim for Mr. Melendez Tijerino was January 27, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Mr. Melendez Tijerino had the requisite work experience at the time of hire, at the beginning of the audit period or by the end of the last paid claim in the audit period, or that he satisfied the training requirement. Maria Oduber The application for Maria Oduber, dated November 29, 2017, lists “young care worker” with “Loyal Resource/CHS” from August 2015 to March 2017. There is no mention of work with the target population associated with that job. Overlapping with that job, the application lists work as client support with HOPWA Housing from March 2010 to January 2017. The application also lists work as an ESOL (English for Speakers of Other Languages) teacher at Greystone Elementary School and as a theater teacher in “Caracas.” There is no indication of work with the target population and the nature of those jobs would not contribute to the requisite work experience. The resume for Ms. Oduber listed the same jobs as listed on the application. There was still no mention of work with the target population for any of those jobs. Ms. Oduber began working for Respondent on January 2, 2018. The last paid claim for Ms. Oduber was March 17, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Oduber had the requisite work experience at the time of hire, at the beginning of the audit period or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Mey Weiss Rodriquez The application for Mey Weiss Rodriguez is dated October 4, 2017, on the front and October 10, 2017, on the back. The application lists work as an assistant at Eliseo Reyes School in “S. Spiritus, Cuba,” from September 2010 to December 2014. There is no mention of work with the target population associated with the job. The application also lists work at Provincial Veterinary Laboratory from August 1997 to August 2010. There is no indication of work with the target population and the nature of that job would not contribute to the requisite work experience. The resume submitted for Ms. Weiss Rodriguez lists the same work on the application, but with less specific information regarding dates, and no information regarding location or contact information. Contrary to the application, work with the target population is listed for Eliseo Reyes School. The resume also claims that Ms. Weiss Rodriguez is an RBT even though Respondent stipulated that none of the rendering providers at issue obtained an RBT by January 1, 2019. The documents submitted to AHCA by Respondent contained a letter of recommendation dated October 4, 2017, from Carmen Yebra. The letter was provided to AHCA post-PAR and makes no mention of work with the target population. Due to the conflict regarding whether there was work with the target population, and the fact there was no documentation of independent verification of that matter, Ms. Herold attempted to verify the work experience. No search engine provided a listing for Eliseo Reyes School and Google Maps, while providing detailed information on Sancti Spiritus, Cuba, indicated the address listed on the application does not exist. The last paid claim for Ms. Weiss Rodriguez was March 17, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Weiss Rodriguez had the requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Sorelys Ferros On her application dated March 14, 2017, Sorelys Ferros lists work as an RBT with MHB Consultants Group (“MHB”) beginning in December 2015 with no end date listed. However, Respondent stipulated that none of the rendering providers at issue obtained an RBT by January 1, 2019. The resume for Ms. Ferros lists the job at MHB and also lists work at Respondent from March 2017 to present. On her resume, Ms. Ferros also indicates that she obtained her RBT certification in December 2015. However, as indicated above, Respondent stipulated that none of the rendering providers at issue obtained an RBT by January 1, 2019. Documents submitted to AHCA by Respondent contain a background screening requested by Respondent. The screening indicates that Ms. Ferros was not eligible to work with the target population until June 2016. As such, she could not have obtained her RBT certification by December 2015. Because Respondent requested the screening, it knew or should have known that Ms. Ferros did not have the requisite work experience and that she was not actually an RBT. The last paid claim for Ms. Ferros was February 2, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Ferros had the requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Teresita Rodriguez The application for Teresita Rodriguez, dated August 10, 2017, lists two jobs as an HHA-BA,4 one with Gifted Health Group, Inc. (“Gifted”), from January 2010 to February 2014, and the other with Nory’s Home Services, Inc. (“Nory’s”), from February 2014 to April 2015. There is no indication of how long Ms. Rodriguez worked in the capacity of an HHA versus as a BA at either job. There is no indication of work with the target population in the HHA job at Gifted or Nory’s. The application also listed work as an HHA at Homecare for Neighborhood Home Health (“Neighborhood”) from April 2015 to “actual” (presumably, the date of the application, August 10, 2017). There is no mention of work with the target population in the job with Neighborhood. The resume for Ms. Rodriguez, lists the same jobs listed on the application; however, the work with Neighborhood is listed on the resume as HHA-BA, and not HHA Homecare. The resume provides more description for each job, and only the job at Gifted describes work with the target population. Documents submitted to AHCA by Respondent contain a background screening requested by Respondent. The screening indicates that Ms. Rodriguez was not eligible to work with the target population until September 2015. Based on the screening, Ms. Rodriguez could not have worked with the target population at Nory’s, Neighborhood, or Gifted before then. Because Respondent requested the screening, it knew or should have known that Ms. Rodriguez did not have the requisite work experience. The documents submitted to AHCA by Respondent contained an undated letter of reference from Josie Vallejo. That letter does not reference any work with the target population but specifically mentions work with Ms. Vallejo’s mother, a senior, although it does not provide any dates. The letter mentioned that Ms. Vallejo had been a friend of Ms. Rodriguez for six years. 4 Presumably, “HHA” as used in applications and on resumes of rendering providers stands for Home Health Aide. The documents submitted to AHCA by Respondent contain an undated letter of reference from Danitza Montero. The letter from Ms. Montero states Ms. Rodriguez cared for Ms. Montero’s son, but does not indicate the son was a member of the target population. Ms. Rodriguez began working for Respondent on December 26, 2017. There is no documentation indicating that Ms. Rodriguez worked for Gifted past August 10, 2017. The last paid claim for Ms. Rodriguez was March 17, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Rodriguez had the requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Xochilt Povsic The application for Xochilt Povsic, dated January 31, 2017, states she worked as a membership coordinator for Sam’s Club, and a dietary aide at Bentley Commons at Paragon Village in New Jersey. There is no indication of work with the target population at either job, and the nature of those jobs would not contribute to the requisite work experience. Overlapping the dietary aide job, on her application Ms. Povsic also indicates work as a BA at two private practice/personal care jobs. Ms. Povsic states she worked for Maria Mora from August 2013 to June 2015 and that she worked for Miriam Ponzano from September 2014 to December 2015. The resume for Ms. Povsic listed the same jobs and dates as listed on the application and also listed another dietary aide job with Fellowship Village in New Jersey. The resume contains descriptions of the type of work performed at each job. There is no mention of work with the target population at either dietary aide job or in the job at Sam’s Club, and those jobs would not be of the type to contribute to the requisite work experience. The work for Ms. Mora was described by Ms. Povsic as providing BA services from August 2013 to June 2015 to a “3-4 [year old child]” with autism, ADHD, and behavior disorders. The work for Ms. Ponzano was described by Ms. Povsic as providing BA services from September 2014 to December 2015 to twin boys, “1-2 years old” with behavior disorders and ADHD. The documents submitted to AHCA by Respondent contained a letter from Miriam Ponzano that is not dated and was provided to AHCA post-PAR. While Ms. Ponzano confirms that Ms. Povsic cared for her boys, there is no indication that the children were part of the target population or that any work performed contributed to the requisite work experience. In addition, the dates of service listed by Ms. Ponzano conflict with the dates listed by Ms. Povsic. Ms. Ponzano indicated the Ms. Povsic cared for her sons from November 2015 to March 2016, not September 2014 to December 2015, as had been asserted by Ms. Povsic on her application and resume. The documents submitted to AHCA by Respondent also contained a letter from Maria Mora, that is not dated, and was provided to AHCA post- PAR. Ms. Mora did not confirm that Ms. Povsic had cared for her 3 to 4-year- old son with autism, ADHD, and behavior disorders, as Ms. Povsic had indicated. Rather, Ms. Mora’s letter indicates that Ms. Povsic was her caretaker, performing personal tasks such as picking up medicines and buying groceries. Ms. Mora does not indicate that she is part of the target population and the services listed are not of the type to contribute to the requisite work experience. In addition, the dates of service listed by Ms. Mora conflict with the dates listed by Ms. Povsic. Ms. Mora indicates that Ms. Povsic cared for her during the winter of 2014 to 2015 (even mentioning that Ms. Povsic shoveled snow for her), not August 2013 to June 2015, as had been indicated by Ms. Povsic on her application and resume. The documents submitted to AHCA by Respondent contained a letter from Maydelis Cruz. The letter is not dated and was provided to AHCA post- PAR. Ms. Cruz indicates she has known Ms. Povsic for 20 years. Ms. Cruz indicates that Ms. Povsic assisted with her son, who has Down Syndrome, from November 2011 to March 2013. Ms. Povsic would only have been 17 years old at that time. The last paid claim for Ms. Povsic was March 17, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Xochilt Povsic had the requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Yaima Alvarez The application for Yaima Alvarez, dated August 10, 2017, listed two overlapping HHA jobs: “Faith,” from July 2016 to “present” (presumably August 10, 2017, the date of the application); and Home Health Solutions, from June 2017 to present (August 10, 2017). There is no indication of work with the target population for either job. The resume for Ms. Alvarez lists no work experience, but has listings under “Professional Affiliations” that appear to be a work history. Faith Health Care, Inc., is listed with dates that correspond to the listing for Faith on the application. There is no mention of a job title or work with the target population regarding Faith Health Care, Inc. Solutions Group, Inc., is also listed under “Professional Affiliations.” As with Faith Health Care, Inc., there is no mention of her job title or work with the target population. That listing does not appear to be the same job that is listed as Home Health Solutions on the resume as the dates do not correspond. There is no indication of work with the target population for Faith Health Care, Inc., or Solutions Group, Inc. There is also a listing for “L.G. (R.B.T. patient).” However, as indicated before, Respondent stipulated that none of the rendering providers at issue obtained an RBT by January 1, 2019. Ms. Alvarez began working for Respondent on December 12, 2017. The last paid claim for Ms. Alvarez was February 8, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Alvarez had the requisite work experience at the time of hire, at the beginning of the audit period or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Yudisley Garces The application for Yudisley Garces, dated April 20, 2017, lists overlapping CNA (Certified Nursing Assistant) jobs. One was with AAA Home Health Service (“AAA”) from June 2014 to today (April 20, 2017) and the other is with Alma Care, Inc. (“Alma Care”), from August 2015 to “today” (presumably the date of the application, April 20, 2017). There is no indication of work with the target population for either job. The resume for Ms. Garces only lists the job for AAA. However, the dates listed on the resume for that job (beginning June 2014) conflict with the dates listed on the application (beginning February 2014). There is no indication of work with the target population associated with that job. The resume also listed two jobs (one at a hospital in Cuba and the other at a hospital in Venezuela) performing puncture aspiration biopsies and cervical cancer diagnoses. There is no mention of work with the target population at either of those hospital jobs, and those jobs would not be of the type to contribute to the requisite work experience. The last paid claim for Ms. Garces was March 17, 2018. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Garces had the requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period, or that she satisfied the training requirement. Zerelys Lauzerique The resume for Zerelys Lauzerique lists work with “Lenin & Daughter” and Ignite Christian Academy (“Ignite”). There is no indication of work with the target population regarding the job at Ignite. It also lists work as a fitness coach with Beach Body, as a Youth Pastor at Cross Church, and as an Assistant Director at Flames of Fire Bible School (“Flames of Fire”), that is not listed on the application. The Beach Body work overlaps the BA work with Lenin & Daughter. There is no indication of working with the target population associated with the jobs at Beach Body, Cross Church, or Flames of Fire, and those jobs would not be of the type to contribute to the requisite work experience. The application for Ms. Lauzerique, dated December 4, 2017, lists work as a BA with Lenin & Daughter from December 2016 to “current” (presumably the date of the application, December 4, 2017) and as a Teacher Assistant with Ignite from August 2014 to August 2015. There is no mention of work with the target population regarding the job at Ignite. The documents submitted to AHCA by Respondent contained a letter of reference dated December 5, 2016, from Melanie Reyes, a “close friend.” The letter from Ms. Reyes does not indicate any work with the target population and instead pertains to Ms. Lauzerique’s work at Beach Body. The documents submitted to AHCA by Respondent also contained a letter of reference dated December 2016 from Reverend Abram Gomez of Cross Church. The letter indicates that he worked with Ms. Lauzerique for two years, but does not indicate any work with the target population. Ms. Lauzerique began working for Respondent on December 11, 2017. The last paid claim for Ms. Lauzerique was January 6, 2018. The documents submitted by Respondent to AHCA for Ms. Lauzerique contained training certificates for both the 20-hour BA course and the 40-hour RBT course. The documents provided by Respondent to AHCA during the audit and during litigation did not substantiate that Ms. Lauzerique had the requisite work experience at the time of hire, at the beginning of the audit period, or by the end of the last paid claim in the audit period. Respondent's Response The owner of Hour Bliss, Inc., Mr. Perez-Delgado, testified on behalf of Respondent. He is a Board-Certified Behavior Analyst, has a master’s certification in addiction, and is a Licensed Mental Health Counselor. Mr. Perez-Delgado testified that Respondent served populations in Miami that no other company would because of the crime. Mr. Perez-Delgado said that when he enrolled Respondent as a BA provider, many of the rendering providers he hired had worked at other companies where he had also worked, and because of this, he believed they met the qualifications required to serve as BAs. Mr. Perez-Delgado testified that he provided records he thought were relevant to the Medicaid investigation beginning in August 2017, and again in January 2018 and April 2019. If there had been a problem, he would have liked AHCA to institute a corrective action plan. However, he alleges the next communication from AHCA was terminating his Medicaid provider number without cause. Later, he received notice of the audit. Much of the testimony from Mr. Perez-Delgado concerned events that occurred prior to the audit beginning in November 2018, and the issuance of the PAR and FAR in 2019. These events are obviously related to the pre-payment review or other matters with AHCA, and not the audit. Mr. Perez-Delgado testified that several of his rendering providers were parents of children with autism or ADHD. Accordingly, they had more than the requisite experience with the target population. However, he did not document that in the files provided to the Agency. Nor did he timely provide records demonstrating that these same workers met the training requirement. Mr. Perez-Delgado offered no information regarding how or whether he verified prior work experience of these BAs in question. ULTIMATE FINDINGS OF FACT In this case, AHCA presented credible, persuasive evidence establishing that the audit giving rise to this proceeding was properly conducted. AHCA obtained and reviewed records from Respondent, issued a PAR, reviewed additional records submitted after the PAR, issued the FAR, and even then continued to review records and consider evidenced that, by giving Respondent the benefit of the doubt whenever possible, further reduced the overpayment. In this audit, AHCA examined the records provided by Respondent to determine if it maintained business records and Medicaid-related records establishing that its rendering providers met the qualifications set forth in the BA Handbook. The BA Handbook required no special documentation. Respondent, as are all providers who contract to provide Medicaid services, was required to keep contemporaneous records regarding entitlement to payment, including employment eligibility, and compliance with all Medicaid rules, regulations, handbooks, and policies. Respondent failed to provide AHCA with documentation that its rendering providers met the qualifications set forth in the BA Handbook. Of the 14 BA providers in dispute, 12 lacked any documentation of the requisite work experience with the target population and meeting the training requirement. Only two BAs, Mr. Rodriguez and Ms. Lazerique, met the training requirements, but did not meet the required work experience with the target population.
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 incorporating the terms of this Recommended Order as follows: AHCA overpaid Respondent the sum of $237,802.50 for BA services and Respondent must reimburse the Agency for those payments. AHCA is entitled to an administrative sanction in the amount of $2,500.00. AHCA, as the prevailing party in this proceeding, is entitled to recover, from Respondent, costs including all investigative, legal, and expert witness costs. DONE AND ENTERED this 27th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2020. COPIES FURNISHED: Julio Cesar Perez-Delgado Hour Bliss, Inc. Apartment 406 888 Brickell Key Drive Miami, Florida 33131 (eServed) Susan Sapoznikoff, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Kimberly Murray, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue for consideration in this hearing was whether the Agency for Health Care Administration should cancel Petitioner's Medicaid provider number for the reasons set out in its letter of October 1, 1995, as amended.
Findings Of Fact Petitioner, Alpha House of Tampa, Inc., is a provider of community mental health services. Its programs deal with all pregnant women and include several which pertain to drugs, alcohol and mental health. These services provided to pregnant woman at Alpha are unique to Hillsborough County because of Alpha's ability to provide residential programs as opposed to merely the day treatment programs offered at other facilities. In March, 1993, Alpha started billing Medicaid for the services it provided to Medicaid qualified patients. At the time, Francis C. Powers, Alpha's Executive Director, telephonically contacted the Medicaid fiscal agent's office and asked what she needed to do in order for Alpha to be declared eligible for Medicaid reimbursements. She was never told it was necessary for Alpha to have a written contract with the ADM, (alcohol, drug and mental health), office. Because of that, Ms. Powers concluded the routine provider agreement Alpha had with Medicaid, entered into on March 13, 1993, was enough. In that regard, Alpha received two letters, both dated March 13, 1993, from the Department of Health and Rehabilitative Services. One was from Gary Clarke, Assistant Secretary for Medicaid, and the other was from Consultec, Inc., the Medicaid fiscal agent for the Department. Both letters welcomed Alpha House to the Florida Medicaid program and neither indicated any need for additional contracts with ADM in order to bill Medicaid for services rendered. As a result of the income derived from Medicaid services Alpha has provided and for which it has been reimbursed, Alpha was able to employ additional staff to provide more comprehensive programs. In 1995 Alpha received $133,918 in reimbursement funds, which equals approximately 18 percent of its annual budget. As a result of the loss of Medicaid funds proposed as a result of the termination of the instant reimbursement, Alpha will have to eliminate the drug and alcohol residential treatment program for 33 residents who will now have to get their drug and alcohol treatment at day treatment centers. Alpha personnel anticipate that because this treatment may not be sought and received, these residents will have low weight babies with potential medical problems, all at an added dollar cost to the community. Paragraphs 8 and 9 of the Medicaid Provider Agreement Alpha signed on March 13, 1993 provide: The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, Florida Statutes. Petitioner has, in the past, billed Medicaid for mental health services provided and has been paid in response to those billings. It does not now have, nor has it had in the past, a contract with the Department of Health and Rehabilitative Services' Alcohol, Drug Abuse and Mental Health office to provide ADM services to its residents.
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 in this case cancelling Alpha House of Tampa, Inc.'s Medicaid provider number 0299588-00. DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 26th day of April, 1996. COPIES FURNISHED: Lynette M. Wenner, Esquire Gillick & Wenner 100 North Tampa Street, Suite 2675 Tampa, Florida 33602 Gordon B. Scott, Esquire Agency for Health Care Administration 2727 Mahan Drive Ft. Knox Building Number 3 Tallahassee, Florida 32308-5403 Sam Power Agency Clerk Agency for Health Care Administration Ft. Knox Building Number 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration Ft. Knox Building Number 3 Tallahassee, Florida 32308
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to chapters 429 and 408, Part II, Florida Statutes. At all times material hereto, Kipling Manor was licensed by AHCA as an assisted living facility. Kipling Manor is located in Pensacola, Florida, and operates a 65-bed facility, license number 7285, and holds a specialty limited health license. Norma Endress is a registered nurse employed by AHCA. She conducts surveys of nursing homes and assisted living facilities for compliance. Ms. Endress is supervised by Patricia McIntire, a nurse consultant supervisor for AHCA. Ms. McIntyre has been with AHCA for 13 years. Belie Williams is the administrator of Kipling Manor. He has been involved with health care services for approximately 35 years, and has been an administrator of ALFs for approximately 15 years. He has been involved with the Florida Assisted Living Association (FALA) and served on its board. Mr. Williams helped implement training sessions for ALFs in conjunction with FALA for the past eight years. Kipling Manor has two nurses who visit the facility to provide care to the residents. Elizabeth McCormick is an advanced nurse practitioner (ARNP) in family, psychiatric and mental health. She has been a nurse since 1983 and has extensive experience dealing with inpatient and outpatient psychiatric residents in long-term facilities. Nurse McCormick works with a VA facility providing inpatient and outpatient care on a high intensity psychiatric unit. She was also an assistant professor at the University of West Florida in the Mental Health Nursing Program. Nurse McCormick provides medical and mental healthcare for residents at several ALFs in Pensacola, including Kipling Manor. She sees patients at Kipling Manor several times a month. She manages the healthcare of residents, diagnoses illnesses, and writes prescriptions as needed. She describes Kipling Manor as not being a typical setting because her patients there are seriously mentally ill, which presents huge challenges. Angela Lavigne is a registered nurse certified by Medicare to provide psychiatric care to patients. She is employed by a company called Senior Care. Among other things, she works with assisted living facilities providing therapeutic counseling, assisting doctors with adjusting medication, and providing in-service training to staff of these facilities in regard to psychiatric care. Nurse Lavigne has been seeing patients at Kipling Manor for almost three years. She visits Kipling Manor approximately four times a week. At the time of the survey, she visited the facility once or twice a week. She provides patient care as well as in-service training to the staff regarding psychiatric issues. She also runs group sessions with the residents to make them feel more independent and feel more like they are in their homes. On July 12 through 14, 2011, Nurse Endress conducted an unannounced complaint survey of Kipling Manor that gave rise to the Amended Administrative Complaint and to this proceeding. Count I--Resident 8 Count I alleges that Kipling Manor failed to provide incontinent care for Resident 8 and failed to provide nail and facial care for Resident 6. Ms. Endress observed Resident 8 walking with a "med tech" to the "med room" to receive her medications. Ms. Endress observed wetness on Resident 8's clothes, and noticed the smell of urine. The med tech gave Resident 8 her medications, then assisted her to an open area where Resident 8 sat down. Ms. Endress observed Resident 8 for about two hours. Ms. Endress approached a personal care assistant (PCA), who was a new employee, and inquired of the PCA as to whether the resident was incontinent. As a result of this inquiry, Ms. Endress believed that this resident was incontinent. After approximately two hours had passed, Ms. Endress called this to the attention of the PCA, who then changed Resident 8 immediately. Ms. Endress determined that Respondent was "not providing care for this lady, incontinent care. They were not monitoring her." This determination was based in large part on her belief that Resident 8 was incontinent. However, Resident 8's health assessment indicates that Resident 8 needed supervision while toileting, but did not carry a diagnosis of incontinence. Ms. Endress acknowledged at hearing that supervision with toileting is not the same thing as being diagnosed with incontinence. Resident 8's health assessment also reflects diagnoses of personality disorder, dementia, and Alzheimer's among other conditions. Ms. McCormick provided health care services to Resident 8. She quite frequently is involved with residents who have toileting issues. Had Resident 8 developed skin problems because of toileting issues, she would have been aware of it. Ms. McCormick noted that the records indicated that Resident 8 received a skin cream three times a day to prevent such skin problems. Both Ms. Endress and Ms. McCormick are of the opinion that, while it is better to change a resident as soon as possible, a two-hour check is appropriate for someone with toileting issues. According to Ms. McCormick, if she were looking to determine whether there existed a direct physical threat to Resident 8, there would be monitoring for skin breakdown, redness or irritation, or a possible urinary tract infection (UTI). Neither Ms. McCormick nor Ms. Lavigne were notified or saw any signs of a skin infection, other skin problems, or a UTI regarding Resident 8. There was no evidence presented that Resident had any skin problems or UTI as a result of this incident or her toileting issues. Erica Crenshaw is a "med tech" and a supervisor employed by Kipling Manor. She provided care for Resident 8 and was on duty the days of the survey in question. Ms. Crenshaw verified that Resident 8 was on a two-hour check at the time of the survey. This involved checking to see if Resident 8 was wet or dry. If she were found to be wet, staff would take off the resident's brief, change and wipe the resident, put on a new brief noting the date and time, as well as recording the staff person's initials. When changing Resident 8, staff would apply a barrier cream, and check to see if any bed sores developed. Ms. Endress determined that this was a Class II violation because of the potential for skin breakdown and infection as well as potential for emotional harm, in that she perceived this as a dignity issue for Resident 8. Ms. Endress based this opinion in large part on her mistaken belief that Resident 8 was incontinent. Her supervisor, Ms. McIntyre, reviewed the classification recommended by Ms. Endress and concurred that Class II was appropriate because "[r]esidents, in particular elderly residents, left sitting in urine, there is a great potential for them to experience skin breakdowns, which would certainly have a severe negative impact on their physical health." Mr. Williams saw Resident 8 while Ms. Endress was conducting her inspection. He saw that she was wet from urine on the back of her clothes. He did not detect any strong odor of urine although he was close to her. Count I--Resident 6 Count I also includes allegations regarding Resident Ms. Endress observed Resident 6 with long facial hair (Resident 6 is female) and long, dirty fingernails. Ms. Endress interviewed Resident 6 regarding these observations. Based upon this interview, Ms. Endress believed that staff did not cut her facial hair or trim her nails, despite Resident 6 wanting them to do so. Ms. Endress estimated Resident 6's nails to be approximately one-quarter inch long but could not recall the length of her facial hair. Resident 6's health assessment reflects a diagnosis of dementia with poor short term memory, and that she needs assistance bathing, dressing, and grooming. Erica Crenshaw described Resident 6 as "a little difficult to work with." Staff works on nails, hands and feet, two days a week. If at first Resident 6 was resistant to having her nails trimmed, they would "give her space" then approach her again later. She described Resident 6's nails as "pretty decent." Resident 6 received health care from both Ms. Lavigne and Ms. McCormick. Both nurses are of the opinion that staff worked with Resident 6 to keep her nails in good shape. As a resident of an ALF, Ms. McCormick noted that Resident 6 had the right to refuse nail care and decide whether her nails needed to be trimmed. Ms. Lavigne informed staff that they needed to work with Resident 6 at her own pace, and to be careful not to make her combative. Ms. Lavigne treated Resident 6 for a wrist problem in mid-summer of 2011, when Resident 6 was in a splint for approximately six weeks, and received physical therapy. She described Resident 6's nails as "nice, round, nothing broken, nothing chipped. Every once in a while she's actually let staff put nail polish on them but as far as cutting them down, it's like an act of Congress to get her to sit down enough to trim them." There is no evidence as to what could have been under Resident 6's nails when Ms. Endress saw her. However, the evidence establishes that Resident 6's nails were tended to by staff on a regular basis, and that her treating nurse was not aware of any problem with them. Regarding facial hair, Ms. Lavigne never noticed any facial hair on Resident 6 other than having "a couple little whiskers here and there." Ms. Lavigne was Resident 6's treating nurse in the general time-period around the survey in question, and was never informed about any problems with Resident 6 regarding nails or facial hair, nor noticed any. Ms. Endress classified the findings she made regarding Resident 6's nails and hair as a Class II violation because she perceived it as a "dignity issue because women do not like facial hair on them." Ms. McIntyre confirmed the class determined by Ms. Endress, although the record is not clear why. Count II--cleanliness and maintenance Count II of the Amended Administrative Complaint alleges that Kipling Manor failed to honor the rights of residents by not providing a safe and decent living environment to prevent the spread of disease for all residents. The Amended Administrative Complaint alleges in pertinent part as follows: In an interview resident #3 on 7/12/11 at 9:00 am stated this place was not clean. He stated the cook will have gloves on his hands when he leaves the kitchen. The cook continues rolling the food down the hallway to the dining room while simultaneously rolling the open garbage container which is soiled. Without changing his gloves he will serve the food to the residents.1/ An observation of lunch on 7/12/11 at 12:00 pm revealed the cook serving turkey with gloved hands not using a utensil. Without changing his gloves he handled silver ware, moved a gallon of milk and was touching the dining room table. He was using the same gloved hand to serve corn bread. While serving food he never changed his gloves between clean and dirty. Other staff wearing gloves were serving lunch to residents and cleaning tables and pouring beverages without changing gloves. They were serving beverages touching the rims of glasses without changing clothes [sic]. During the survey, the following was seen: Bathroom floor for room 9 on wing 1 was dirty with build-up of dirt in the corners. Lounge area at the end of wing 1 had a broken recliner that was being used by a resident. The floor and furniture were soiled. Room and bathroom #3 on wing 1 had dirty floors with build-up of dirt along baseboards and the toilet lid was too small for the tank. Vents were clogged with dust. The door was too short for the opening; wood was missing on door frame and the threshold had broken tile. Dining room bathroom at the end of wing 2 had dirty floors with build-up of dirt along baseboards; around bottom of the toilet was black and the seal was cracked. Dining room floors were dirty and walls had dried food on them. Room 27 had filthy floors with build up along baseboards; dried spills were noted and the drywall had a hole in it. Wing 2 had drywall that was pulling away from ceiling and the ceiling had brown water spots: soiled dirty walls; dirty baseboards with build up of dust; spills on walls and vents dusty. Wing 2 had no baseboard near the shower; the cabinet had mildew on the outside surface; the wood was warped and peeling. The sink was soiled with dried brown substance. The door to the cabinet would not close. The baseboard wood near sink was split and the drywall had an indentation of the door knob. Room 21 floors were filthy and smelled of urine. Soiled clothes laid on the floor with soiled underwear which were observed while medication technician was assisting resident. No action was taken by the medication technician. Laundry room floors were filthy. There was no division between clean clothes and dirty clothes. Clothes were lying on the floor.2/ Based upon this complaint, Ms. Endress observed the dining room during a meal and toured the building. At hearing, Ms. Endress acknowledged that she did not see the cook touch the garbage pail or garbage and then touch food. She maintained, however, that she observed the cook while wearing gloves, touch food then touch "dirty surfaces," then go back and touch food on plates and touch the rims on glasses. Ms. Endress did not specify at hearing what she meant by "dirty surfaces," but in her report which was the basis for the Amended Administrative Complaint, she noted that the cook would touch food and then touch surfaces such as moving a gallon of milk, touching the dining room table, and handling silver ware. She also testified that she saw other staff wearing gloves who were serving residents, cleaning tables, and serving beverages without changing their gloves. Deborah Jackson is a personal care assistant (PCA), food server, and laundry worker at Kipling Manor. Ms. Jackson and one other PCA serve meals for about 60 residents. She received training in food service. She was working at Kipling Manor the days Ms. Endress was there for the survey. Ms. Jackson always wears gloves when serving the residents. If she touches anything besides food she changes gloves. For example, if she moves chairs, she changes gloves before resuming food service. She has never seen the other PCA touch other items then serve food. She was trained never to touch the rims of the glasses but to pick up glasses and cups from the side. She goes through "probably a whole box" of gloves in a day. According to Ms. Jackson, the cook stands behind the area and puts the food on the plates, preparing two plates at a time. She watches him prepare the plates of food. She and the other PCA then serve the food to the residents. The garbage can is kept in the back, not where food is being served. She has never seen the cook touch the garbage can then prepare plates of food. When he has finished, he takes all "his stuff" out on a cart, while the PCAs clean up. If a resident spilled food, the PCAs, not the cook, would clean it up. L.N. was the cook at the time of the survey inspection. L.N. was hired in April 2011 and received training in infectious control and food service sanitation. L.N. no longer works for Kipling Manor.3/ Billie Williams, as administrator of Kipling Manor, confirmed Ms. Jackson's description of the cook's role in serving dinner. That is, that the cook prepared plates of food and the PCAs then served the residents. At hearing, Ms. Endress essentially reiterated her findings regarding the other allegations in count II dealing with the cleanliness and condition of the facility. No further proof was offered regarding these or any other allegations in the Amended Administrative Complaint. Mr. Williams' testimony contradicted much of what Ms. Endress described regarding the cleanliness and condition of the facility. Specifically, Mr. Williams noted that on the day of the survey inspection, maintenance men were repairing a ceiling leak. The ceiling leak was the cause of the "drywall pulling away from the ceiling" and the "brown water spots" on the ceiling cited in the Amended Administrative Complaint. These conditions were the result of the water leak and were in the process of being repaired at the time of the survey. The workers arrived early in the morning and cut drywall from the ceiling where the water dripped down on it. They necessarily used a ladder to do the ceiling repair work. A maintenance man stood at the bottom of the ladder and, if a resident approached, would escort the resident around the ladder. Regarding the issues of cleanliness, Mr. Williams has two housekeepers, a person who does the laundry, and two maintenance men. Mr. Williams acknowledged that there may be a small wax buildup along baseboards or on the inside corner of a door. However, the two maintenance men wax, strip, and buff the floors throughout the building. The floors are swept and buffed every day. The baseboards (wall to floor) are dust mopped twice a day. Regarding the allegation that there was black around the bottom of the toilet and the seal was cracked in the bathroom off the dining room area, Mr. Williams went to that room with the maintenance men to personally inspect it. He observed some discoloration on the floor where the toilet may have overflowed at some time and got underneath the tile. The maintenance men cleaned this immediately and replaced the tile. Regarding the allegation that there was mildew on a bathroom cabinet, Mr. Williams inspected the black mark and found it to be a tire mark from a wheelchair. He found no mold or mildew. The black mark was removed. There is a separate laundry room where washers and dryers are located. Any clothes on the floor are for sorting or separating by color or other reason prior to washing. Once clothes are washed, they are taken back to the residents' rooms immediately. Clean sheets, towels, and wash cloths are placed on wooden shelves that were built for that purpose. There is no evidence that establishes that clean and dirty clothes were mixed on the floor. Mr. Williams also inspected the recliner. The recliner has snap-on armrests and one had been snapped off. The maintenance men snapped the armrest back on the chair, and it was easily repaired. Regarding the allegation that the drywall in a bathroom had an indentation of the door knob, Mr. Williams inspected that and found that the doorstop on the bottom had broken off. There was an indentation in the wall the size of a doorknob where the door had been opened hard. This was repaired by the maintenance men. Regarding the allegation of vents being clogged with dust in a room and bathroom, Mr. Williams found "a little" dust on a vent which was cleaned immediately by staff. He then instructed staff to check the vents daily for dust build-up. Mr. Williams could not find a door that was too short for the opening, and noted that this would be a fire code violation. Kipling Manor is current on fire and health safety inspections. In general response to the allegations regarding cleanliness and maintenance and to a question asking whether he keeps a well-maintained building, Mr. Williams stated: We try our best. I mean, I have--you know, when you have incontinent residents who are demented, who are bipolar or suffering from depression, they will do things. And, yes, they do. And like, I think in one of the reports she wrote up, there was wet clothes on the floor. Well, if a resident, some of them are semi-independent, too. I mean, they take care of their own needs. If they had an incontinent issue that morning, and they took their clothes off and left it there on the floor, you know, they expect the staff to pick it up and take it to a laundry room when they come through. You know, we do, I think, we do a darn good job given the -- a lot of my residents have been homeless, have never had any structured living. Nobody else in town takes them, but I have. Ms. Endress classified the alleged violations in Count II as Class II "because of the potential for harm to residents which could occur from an unsafe environment and potential spread of infection." Ms. McIntyre agreed with Ms. Endress that "the totality of all the findings are what drove the deficiency to be considered a Class II." Count III--Resident 4 medications Count III alleges that Kipling Manor failed to administer medications according to the medication observation record (MOR) for 1 out of 9 sampled residents (Resident 4). During lunch, Ms. Endress observed Resident 4 become agitated, rub his face, and complain loudly in the dining room. Following an observation of this resident and a conversation with him, Ms. Endress reviewed Resident 4's medication observation record (MOR) and health assessment. Ms. Endress determined that Resident 4 had not been given one of his medications, Interferon, when scheduled. The MOR shows a time for administration as 8 a.m. According to Ms. Endress, on the date this took place, July 12, 2011, the MOR was blank in the box that should be initialed when the medication was administered. The MOR in evidence, however, reflects initials in that box (i.e., it is not blank). When a drug is self-administered, the staff member initials the box for that day. Erica Crenshaw recognized and identified the initials in the box for that day as those of former unit manager Tekara Levine, who trained Ms. Crenshaw. According to Mr. Williams, Ms. Levine, was certified in the self- administration of medications and was a trustworthy employee. Ms. Endress observed Resident 4 wheel himself from the dining room to the medication room and self-administer his medication. This occurred around noon that day. Ms. Endress determined this to be a Class II violation as she believed it directly threatened the resident emotionally. She based this in part on the resident's demeanor before the medication and afterwards, and the comments the resident made to her. Resident 4 is one of Nurse Lavigne's patients. Resident 4 has a diagnosis of MS, major depression, post traumatic stress disorder, a paranoid psychosis, and anxiety and affective disorder. He receives Interferon for his MS. It is injectable and he self-administers it every other day. According to Nurse Lavigne, there is no doctor's order stating that the Interferon must be given at 8 a.m. or any other particular time. The injection can be administered at any time during the day. Resident 4 sometimes gets confused about his medications. He gets extremely upset if he thinks he has not gotten his medications. He will sometimes tell her (Nurse Lavigne) that he did not receive a particular medication when he, in fact, did receive it. Once he is shown the MOR indicating that he has received his medication, he visibly calms down. He does not like to leave his room because he thinks somebody is changing stations on his TV. Regarding his once-a- day medications, staff will wait until he is ready to come out of his room because he can get agitated. He sometimes gets upset if there are a lot of people around him, such as in the dining room. Nurse Lavigne does a full assessment when she sees Resident 4. She was not aware of any problems with Resident 4 during that time period regarding his medications. While the record is unclear as to why Resident 4's MOR shows an administration time of 8 a.m., the evidence established, through Nurse Levine, his treating nurse, that there is no doctor's order requiring that the drug be administered at that particular time. The evidence also established that Resident 4 self-administered his medication at noon on July 14, and that this was initialed by a staff member on his MOR. Count IV--Resident 1 medications As a result of a complaint received, Ms. Endress interviewed residents about their medications and spoke to a new staff member. Based upon these interviews, Ms. Endress determined that one of Resident 1's medications (Flexeril) had not been available for one dose on July 13, 2011, and another of this resident's medications (Visteril) had not been available from June 23 until July 12, 2011). Ms. Endress classified this alleged violation as a Class II because she determined that that it directly affected the resident psychologically and physically. Resident 1 had a diagnosis of COPD and has an anxiety disorder. She is alert and oriented. Resident 1 was prescribed Flexeril to be administered every evening, and Vistaril and Ativan for anxiety. She is to receive Ativan twice a day and PRN (as needed) and Visteril before bed and PRN. Each day a medication is administered, the residents' MORs are initialed by staff in a box indicating each day of the month. However, if the resident runs out of a drug, the staff member will put a circle in the box representing that day and makes a note on the back of the MOR. No circles or notes appear on Resident 1's MOR indicating that either drug was not available. Resident 1 is a patient of Nurse McCormick. Resident 1 becomes anxious or agitated if she does not receive her medication for her anxiety disorder. Nurse McCormick considered Resident 1's anxiety disorder well controlled by the medications. Resident 1's MOR reflects that she received Visteral from June 1 through 30 at night as ordered and received it PRN several times prior to June 23, 2011, but did not receive it PRN the rest of the month of June or July 1 through 14. She also received Ativan twice a day routinely in June and July and five times PRN during the period June 23 through 30, 2011, and four times during the period July 1 through 14. According to Nurse McCormick, either medication was appropriate for controlling Resident 1's anxiety disorder. Resident 1's MOR reflects that she received Flexeril on June 30, 2011. Nurse McCormick was not made aware at any time that Resident 1 was not receiving any of her medications. As the treating and prescribing nurse, missed or unavailable medications would have come to Nurse McCormick's attention. Resident 1 was not anxious, nervous or agitated when interviewed by Ms. Endress on July 12, 2011. There is no competent evidence that Resident 1 displayed any signs of anxiety, nervousness or agitation during the survey or during the times that the Amended Administrative Complaint alleges that she did not receive her medication. Nurse McCormick found the staff of Kipling Manor to be careful with all residents. She has been to the facility at various times of the day from early in the morning to late into the evening. Nurse McCormick is of the opinion that the staff takes care of all its residents and provides them with dignity. Despite Kipling Manor's resident population of seriously mentally ill residents, Nurse McCormick is of the opinion that the facility manages its residents with dignity and care. Count V--Background Check The Amended Administrative Complaint alleges that one staff member of Kipling Manor, the cook, had not been background screened. Based upon record review and staff interview, Ms. Endress determined that the facility did not complete a level 2 background check for 1 out of 8 sampled staff members. A record review revealed that this employee had been hired in April 2011. On April 26, 2011, the employee in question signed an Affidavit of Compliance with Background Screening Requirements, using AHCA form #3100-0008. By signing this form, the employee attested to never having been arrested for, pled nolo contendere to, or convicted of certain disqualifying offenses. Mr. Williams did not complete a background check on the cook because he did not think the cook was covered under the law. That is, he did not think the law applied to the cook because of the lack of personal contact with the residents. The cook is present during meal times serving plates of food to the dining workers who then directly serve the residents. The living areas are accessible to the cook. This employee no longer works at Kipling Manor. The record is not clear as to when he stopped working there. Ms. Endress determined that this constituted a Class II deficiency as she believed that it could potentially lead to harm to residents of the facility. According to Ms. McIntyre, AHCA always imposes a Level II deficiency for failure to have a level 2 background screening for employees. Both Ms. Endress and Ms. McIntyre testified at hearing regarding what constitutes Class II and Class III deficiencies. In several instances, Ms. Endress classified a violation or deficiency that could potentially result in harm to a resident as a Class II. Ms. McIntyre testified that "a potential harm to a resident could be a class II deficiency." She described a Class III as one that "indirectly threatens the physical, emotional health or safety of a resident. . . . indirectly or potentially." The Agency provided a mandatory correction date of August 1, 2011, for all five counts in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing a fine of $2,000, imposing a survey fee of $500, and dismissing the remaining allegations of the Amended Administrative Complaint against Respondent, Kipling Manor. DONE AND ENTERED this 1st day of May, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 1st day of May, 2012.
The Issue Whether the Petitioner was overpaid for Medicaid prescriptions. The Agency for Health Care Administration (AHCA, Agency or Respondent) asserts the Petitioner, Compscript, Inc., d/b/a Compscript (Petitioner or Compscript) failed to maintain proper records to support and document the Medicaid prescription claims paid by the Agency for the audit period. According to the Agency, the audit findings must be extrapolated to the universe of all claims for the audit period. If so, the Agency maintains the Petitioner should reimburse AHCA for a Medicaid overpayment in the amount of $216,974.07 (this is the “recoupment” amount). The Petitioner denies it was overpaid any amount, asserts it kept records in accordance with applicable laws and regulations governing pharmacy records, and maintains that the Agency may not apply the extrapolation accounting procedure in this case.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was a licensed pharmacy authorized to do business in the State of Florida; its pharmacy license number is PH0016271. At all times material to the allegations of this case, the Petitioner was authorized to provide Medicaid prescriptions pursuant to a provider agreement with the Respondent. The Petitioner’s Medicaid provider number is 106629300. The terms of the provider agreement govern the contractual relationship between this provider and the Agency. The parties do not dispute that the provider agreement together with the pertinent laws or regulations controls the relationship between the provider and the Agency. The provider agreement pertinent to this case is a voluntary agreement between AHCA and the Petitioner. Pursuant to the provider agreement, the Petitioner was to “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.” In addition to the foregoing, a Medicaid provider must maintain a patient record for each recipient for whom new or refill prescriptions are dispensed. Any Medicaid providers not in compliance with the Medicaid documentation and record retention policies may be subject to the recoupment of Medicaid payments. A Medicaid provider must retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. The records may be kept on paper, magnetic material, film, or other media. However, in order to qualify for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamp signatures must be initialed. The records must be accessible, legible and comprehensive. Specific to the issues of this case, a Medicaid provider must also retain prescription records for five years. The Respondent is the state agency charged with the responsibility and authority to administer the Medicaid program in Florida. Pursuant to this authority AHCA conducts audits to assure compliance with the Medicaid provisions and provider agreements. These “integrity” audits are routinely performed and Medicaid providers are aware that they may be audited. At all times material to the allegations of this case, the Medicaid program in Florida was governed by a “pay and chase” procedure. Under this procedure, the Agency paid Medicaid claims submitted by Medicaid providers and then, after-the-fact, audited such providers for accuracy and quality control. These “integrity” audits are to assure that the provider maintains records to support the paid claims. In this case, the audit period is May 28, 1999 through July 18, 2000. The pertinent audit has been designated AHCA audit no. 01-0514-000-3/H/KNH and was initiated on October 23, 2000. The Petitioner does not dispute the Agency’s authority to perform audits such as the one at issue. The Petitioner maintains its records are sufficient to support the paid claims and that the Agency has unreasonably imposed its interpretation of the requirements. The Medicaid provider agreement that governs this case required that the Petitioner comply with all Medicaid handbooks in effect during the audit period. Essentially, this standard dictates the records that must be kept for quality control so that the after-the-fact audit can verify the integrity of the Medicaid claims that were paid by the Agency. During the audit period the Petitioner sold or dispensed drugs to Medicaid recipients. Equally undisputed is the fact that Medicaid claims were paid by the Agency during the audit period. Each claim reviewed and at issue in this cause was a paid Medicaid claim subject to the Petitioner’s provider agreement and the pertinent regulations. The Agency required that each and every claim submitted by the Petitioner during the audit period under the Medicaid program be filed electronically. Each claim submitted was filed electronically. Nevertheless, the Agency also required the Petitioner to retain records supporting the claim. Additionally, the Petitioner was to make such supporting records available to the Agency upon request. The Agency asked the Petitioner to present its records to support the claims for the audit period. The disclosure of the records proved difficult for this Medicaid provider because it does not operate in a conventional pharmacy setting. More specifically, it operates solely to serve a nursing home population. All of the patients whose prescriptions were filled were nursing home residents. Compscript maintains its manner of doing business is slightly different from the conventional pharmacy. Rather than the walk-in patient who presents a written prescription to be filled, this Petitioner receives its pharmacy orders by telephone or facsimile transmission from nursing homes. Typically, the staff at Compscript takes the call, writes down the pertinent information, enters the data into the pharmacy’s computer system, and the item is dispensed and routed to the nursing home via the delivery driver. All drugs are dispensed in sealed containers and are delivered with a manifest listing all the medications by name and patient. Given the volume of prescriptions being prepared and delivered, for the audit period at issue in this case, the Petitioner made 2-3 trips to the nursing home per day. Once the information for the prescription was entered into the Petitioner’s computer system, Compscript had little interest in maintaining the written telephone message or the facsimile sheet that generated the request. In some instances the Compscript employee did not make a written record of the prescription request. In those instances the employee entered the request directly into the Petitioner’s computer system and bypassed the written step altogether. The Compscript computer system tracks the initials of the pharmacist who entered the prescription information and cannot be altered without such alteration being tracked and noted. Since the pharmacy fills “over the counter” items, as well as controlled and non-controlled pharmacy products, the computer record denotes that information along with the patient information. When the Respondent’s audit agents went into the Compscript facility to audit the Medicaid claims, the Petitioner could not readily produce the written documentation to support the dispensed drugs. In fact, many of the records that verified the prescriptions dispensed were found on the nursing home records. The nursing home patient’s physician order sheet specified the item or items requested for the patient. This “physician order sheet” (POS) should theoretically always support the dispensing of the product from the Petitioner. In this case there were instances when the POS did not corroborate the claim. When the auditors from the Agency presented at Compscript, the Petitioner did not have the POS records to produce. Obviously, those records were maintained within the nursing home. Additionally, Compscript did not have the telephone notes or the facsimile transmission sheets to support items dispensed during the audit period. When the hearing in this cause proceeded it was also discovered that records that were generated daily by the Petitioner’s computer system that would have corroborated the claims (and which were allegedly maintained in storage) were not produced or available to support Medicaid claims submitted during the audit period. During the audit the Agency’s auditors requested records from a random sample of the claims submitted during the audit period. The results from that sample where then applied to the universe of claims for the audit period. When this mathematical calculation was performed the audit produced a Medicaid overpayment in the amount of $1,341,466.27. Afterwards, when the Petitioner was able to locate additional records to correspond to and support the prescriptions dispensed, the amount of overpayment was reduced to $217,715.28 (the amount set forth in the parties’ Pre-hearing Stipulation). At hearing, the Agency maintained that the amount of overpayment was $216,974.07 for which the Petitioner could produce no adequate documentation. At hearing, the Petitioner continued to dispute the procedure of applying the audit sample overpayment to the population of claims to mathematically compute the overpayment for the audit period. This “extrapolation” process was admitted into evidence and has been fully considered in the findings reached in this case. The Petitioner was required to maintain Medicaid- related records for a period of 5 years. Thus, for the audit period in this case, any record supporting the claims should have been maintained and made available for the Agency. Such records would have been within the five-year period. The Agency designates Medicaid compliance to its office of Medicaid Program Integrity. In turn, that office contracted with Heritage Information Systems, Inc. (Heritage) to perform and report pharmacy audits of the numerous pharmacy providers within the state. Auditors from Heritage were assigned the Compscript audit. At the time of the audit the Heritage auditors were not privy to any of the POS documents later produced in the case. Ken Yon is the Agency’s administrator who was responsible for managing the instant case and who worked with the Heritage auditors to assure the policies and practices of the Agency were met. In this case, the Heritage auditors presented at Compscript unannounced on October 23, 2000, and sought 250 randomly selected claims for review. By limiting the number of claims, the auditors were not required to sift through the records of 46,000+ claims (the approximate number of claims that the Petitioner submitted during the audit period). For the universe of 46,000+ claims, 250 randomly selected claims is a reasonable sample to audit. The adequacy of the sample number as well as the manner in which it was generated is supported by the weight of credible evidence presented in this matter. Also, the results of a sample of 250 from the universe of 46,000+ would be statistically valid if randomly chosen as they were in this case. In this regard the testimony of Dr. Mark Johnson, an expert in statistical sampling and analysis, has been deemed credible and persuasive as to the issues of the appropriateness of the sample (as to size and how it was generated), the use of the sample overpayment to calculate an overall payment, and the statistical trustworthiness of the amounts claimed in this cause. If anything, as Dr. Johnson asserted, the actual overpayment would be greater than the recoupment amount sought by the Agency. The Agency has used a statistical extrapolation method to compute overpayments for years. The statistical concept and process of applying a sample to a universe to mathematically compute an overpayment is not novel to this case. After the auditors completed their review of the records at the Compscript pharmacy, Kathryn Holland, a licensed pharmacist (who is also a consulting pharmacist) prepared the Respondent’s Final Agency Audit Report. Prior to completing the report, Ms. Holland received and reviewed the information provided by the Petitioner through the auditors. As a result of the review, a number of “can’t find” conclusions were reached. By “can’t find” the auditors and Ms. Holland meant that the original prescription or refill documentation could not be located for the paid Medicaid claim. These “can’t find” claims were reported to the Petitioner, who was given additional time to locate and produce documents to support the claims. In fact, the Agency continued to accept documentation for claims up through the time of hearing. Consequently, the amount sought for overpayment has been substantially reduced. Whether the Agency had the authority to accept documents outside the prescription records maintained by the pharmacy is not an issue. In fact, the Agency did reduce the overpayment amount when subsequent supporting documents were located. A second error in the documentation for the Petitioner’s prescriptions was noted as “no doctor’s address on the prescription.” That expression meant that pursuant to state and federal law the physician’s address is required for a controlled substance and when it was not provided the auditor deemed the documentation incomplete. Although the Petitioner maintained doctor addresses in its computer system, the records did not correspond to the specific prescriptions that were filled for the audited claims. In order to stand as a sufficient prescription form, a writing must be created contemporaneous to the order (phone requests that are transcribed are acceptable), must contain specific information (type of drug, strength, dose, patient, doctor, DEA number, refill, etc.), and it must be kept for the requisite time. It would be acceptable for the prescription to be computer generated so long as it was written contemporaneous to the order and preserved as required by law. In this case, at the conclusion of the audit, the Agency identified 194 discrepant claims within the random sample of 250. The vast majority of those discrepancies were noted as “can’t find.” Had the Agency not accepted other documentation to support the dispensing of the drugs, the calculated overpayment would have been $1,575,707.44. Applying a lower confidence limit of 95 percent to that amount generated the calculated overpayment of $1,341,466.27. The audit findings set forth in the Agency’s Final Agency Audit Report (dated April 6, 2001) is supported by the weight of credible evidence in this case. Nevertheless, the Agency did allow the provider here to supplement the documentation disclosed during the audit. And, to that end, the calculated overpayment was reduced to $216,974.07 (this amount is 95% of the calculated overpayment). In reality, the amount owed by this Petitioner for failure to maintain proper documentation for this audit would be greater than the recoupment amount sought by the Agency. Had the Agency held the Petitioner to a standard of “no prescription, no payment” standard arguably 194 of the 250 audited claims could have been disallowed. That is not the standard applied by the Agency. A “patient record” may include information regarding the patient’s prescription history. The terms “patient record” and “prescription” are not synonymous. For example, while a prescription would contain information such as patient's name, doctor, DEA number, doctor's address, dosage, drug, and whether it may be refilled, it would be expected that the “patient record” would contain additional information not typically found on a prescription. For instance, a “patient record” might contain a historical track of past medications or known patient allergies. In this case, the computer records or “patient records” maintained by the Petitioner did not retain the prescriptions in the format dictated by rule. An electronic imaging recording system may be used when the system captures, stores, and can reproduce the exact image of the prescription, including the reverse side of the prescription if necessary. The Petitioner’s system did not do that. An electronic system must be able to produce a daily hard-copy printout of all original prescriptions dispensed and refilled. If the Petitioner’s system could do that, it did not. An acceptable electronic system must generate the prescription contemporaneous to the dispensing order. The Petitioner’s system did not do that. The Agency has not alleged, and there is no evidence to suggest, fraud in the Petitioner’s failure to maintain its records. The Agency’s interpretation of the requirement that a prescription be reduced to writing is consistent with the rules and regulations in effect at the time of this audit. The last category of discrepant items was “UR” which stood for “unauthorized refills.” These were claims for refills on drugs for which the original prescription could not be located or documentation from the nursing home could not be found. Again, the Petitioner the maintained that within the nursing home setting a physician’s reorder for medications for the patient could be found on the POS. These refill requests were handled orally among the physician, the nursing home staff, and the pharmacy. Nevertheless, because they were not documented in writing the Agency disallowed this claims and included them among the discrepant list. If the Petitioner was able to produce a physician order to support the UR claims, it was removed from the recoupment list. In most instances, the Petitioner did not have the requisite paperwork to support the refill. Instead, the Petitioner relied on its computer records (again not kept in accordance with the applicable standards) to support the UR claims. The Agency has not claimed that the refills were not dispensed, merely that the paperwork to support the claim cannot be produced.
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 that accepts an amended Final Agency Action Report to support an overpayment and recoupment against the Petitioner in the amount of $216,974.07. S DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. J. D. 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 6th day of October, 2005. COPIES FURNISHED: Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 L. William Porter, II, Esquire Agency for Health Care Administration Fort Knox Executive Center III 2727 Mahan Drive, Building 3, Mail Stop 3 Tallahassee, Florida 32308-5403 Kenneth W. Sukhia, Esquire Fowler, White, Boggs, Banker, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32302 Ralph E. Breitfeller, Esquire McGrath & Breitfeller, LLP 140 East Town Street, Suite 1070 Columbus, Ohio 43215
