The Issue The issue is whether Respondent failed to maintain a service plan for each of four residents, in violation of the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. If so, an additional issue is the sanctions that should be imposed.
Findings Of Fact Respondent owns and operates an assisted living facility known as Izquierdo Home Care I. At all material times, Respondent was enrolled in the Medicaid program as a provider authorized to supply assistive living services to Medicaid recipients at Izquierdo Home Care I. At all material times, Respondent was subject to the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook. The handbook imposed upon Respondent the duty to develop a service plan for each Medicaid recipient not less often than annually. On March 27, 2012, Petitioner's inspector conducted a site visit of Izquierdo Home Care I. At the time of the site visit, the facility had six beds, but only four residents. According to a letter from Petitioner dated March 27, 2012, and delivered to Respondent's representative at the time of the inspection, the following four residents were Medicaid recipients: E. C., R. R., J. H., and A. R. However, according to the questionnaire completed by Respondent's representative at the time of the inspection, only two of the four current residents were Medicaid recipients, although the questionnaire does not identify these residents. In fact, A. R. had been discharged from Izquierdo Home Care I in September 2011. At the hearing, Petitioner's inspector confirmed that Respondent had not billed Medicaid for services for A. R. after the date of discharge. The second resident whose Medicaid status is in question was identified, in Respondent's proposed recommended order, as E. C. Respondent contends in its proposed recommended order that E. C. was not receiving Medicaid at the time of the inspection. If the Proposed Recommended Order were the only notice to Petitioner of Respondent's claim that a second resident was not a Medicaid recipient, the Administrative Law Judge would ignore this assertion because it is not evidence, and, as a defense, it was raised too late. However, the questionnaire, which was admitted as one of Petitioner's exhibits, is evidence that two of the four residents were not receiving Medicaid at the time of the inspection. In assessing the evidentiary record in terms of whether it establishes a third Medicaid recipient, the Administrative Law Judge notes: a) Petitioner has alleged a violation concerning A. R., even though A. R. was no longer a Medicaid recipient at the time of the inspection; b) at hearing, Petitioner's inspector was readily able to read the "query" to confirm that Respondent had not submitted a Medicaid billing on account of A. R. after September 2011 (Transcript 49); and c) as discussed in the Conclusions of Law, Petitioner bears the burden of proof by clear and convincing evidence. Under these circumstances, Petitioner has proved only that two residents of the facility were Medicaid recipients at the time of the inspection. There is no dispute that current service plans for two Medicaid recipients did not exist at the time of the March 2012 inspection.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing a fine of $2000 against Respondent. DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 26th day of October, 2012. COPIES FURNISHED: Jeffries H. Duvall, Esquire Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Julia Arrendell, Qualified Representative 13899 Biscayne Boulevard North Miami Beach, Florida 33181 Elizabeth Dudek, Secretary Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Stuart Williams, General Counsel Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403 Richard J. Shoop, Agency Clerk Office of the General Counsel Agency for Health Care Administration Fort Knox Executive Center, Building 3 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308-5403
The Issue Whether the subject supplemental Medicaid payments to Petitioner for services to patients with acquired immunodeficiency syndrome (AIDS) during the audit period January 1, 1999 through June 20, 2001, constitute overpayments. Whether Respondent has the authority to recoup such overpayments. If such authority is found, whether the doctrine of unjust enrichment should be applied to prevent Respondent's recouping any overpayment under the facts of this proceeding.
Findings Of Fact Petitioner operates a duly-licensed nursing home located in Broward County, Florida. At all times pertinent to this proceeding, Respondent was a Medicaid provider with the following Medicaid provider number: 020695400. As a Medicaid provider, Petitioner agreed to comply with all pertinent state and federal laws and regulations. At the times pertinent to this proceeding Petitioner had a valid Medicaid Provider Agreement with Respondent. Respondent is the agency of the State of Florida responsible for oversight of the integrity of the Medicaid program in Florida. The unnumbered opening sentence of Section 409.913, Florida Statutes, provides as follows: The agency shall operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. During the audit period, Petitioner was subject to all of the duly enacted statutes, laws, rules, and policy guidelines that generally govern Medicaid providers. Petitioner was required to follow all the Medicaid Coverage and Limitation Handbooks and all Medicaid Reimbursement Handbooks in effect, including, the Florida Medicaid Provider Reimbursement Handbook, Institutional 021 (the Institutional Provider Handbook), which is incorporated by reference by Respondent's Rule 59G-4.200, Florida Administrative Code. During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner to maintain all "Medicaid-related Records" and information that supported any and all Medicaid invoices or claims that Petitioner made during the audit period.1 During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner at Respondent's request to provide Respondent or Respondent's authorized representatives all Medicaid-related Records and other information that supported all the Medicaid-related invoices or claims that Petitioner made during the audit period.2 Section 409.913(7), Florida Statutes, provides, in pertinent part, as follows: (7) When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty . . . to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law. Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical record. Section 409.913(1), Florida Statutes, defines the terms "medical necessity" and "medically necessary" as follows: "Medical necessity" or "medically necessary" means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. Determinations of medical necessity must be made by a licensed physician employed by or under contract with the agency and must be based upon information available at the time the goods or services are provided. Section 409.913(10), Florida Statutes, provides as follows: (10) The agency may require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished. Section 409.913(1)(d), Florida Statutes, defines the term "overpayment" as follows: "Overpayment" includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake. On March 28, 2001, Respondent sent Petitioner the audit letter for the audit period. The audit letter provided, in pertinent part, as follows: The Agency for Health Care Administration, Medicaid Program Integrity office has completed a review of your Medicaid claims for dates of service during the period January 1, 1999, through June 30, 2000. A provisional letter was sent to you indicating you were overpaid $49,965.30 for claims that in whole or in part are not covered by Medicaid. We have received no response from you regarding the provisional letter. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, Florida Statutes (F.S.). In determining payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies and the limitations and exclusions found in the Medicaid provider handbooks. 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 and billing bulletins. Medicaid cannot pay for services that do not meet these guidelines. The audit letter thereafter cited the following from Chapter 7 of the Institutional Provider Handbook (Chapter 7) in asserting there had been an overpayment: Nursing facilities may receive a supplemental payment for a recipient with AIDS. The supplemental payment must be prior authorized by the Medicaid office before the facility will be reimbursed for it. The facility where the recipient resides must request the prior authorization. The Medicaid office notifies the provider with a letter of approval or denial. An approved authorization is not a guarantee that Medicaid will reimburse the supplemental payment. The provider must be enrolled in Medicaid, and the recipient must be eligible on the date of service for a Medicaid program that reimburses for institutional care.3 Chapter 7 provides as follows for the effective date of the supplement: If the recipient is approved for the increased supplemental payment, the approval letter will state the effective date of the supplemental payment. The effective date of the supplemental payment is determined by the following criteria: If the recipient was ICP eligible when admitted to the facility and met the AIDS criteria on the admission date, the effective date will be the same as the admission date. If an ICP recipient becomes HIV positive while in the facility and meets the AIDS criteria, the effective date will be the date that the Medicaid office determines the clinical criterion was evidenced. For recipients registered through SFAN, the effective date will be the effective date of the SFAN registration or ICP eligibility, whichever is later. Chapter 7 provides that a nursing home may receive "H" Supplement payments for a recipient who has been diagnosed as being positive for the human immunodeficiency virus (HIV), has laboratory confirmation of a reactive screening test for HIV antibodies, and is receiving active treatment for a condition that meets the Center for Disease Control definition of AIDS. A nursing home may also receive "H" Supplement payments for a recipient who is registered with the South Florida AIDS Network (SFAN). Chapter 7 requires that a request for prior authorization contain a letter from the facility requesting the "H" Supplement payment; a copy of the admission cover sheet; a confirming HIV test (Western Blot or IFA)4; and a signed physician letter or statement documenting current treatment for an opportunistic AIDS-related disease, or if the recipient is registered with SFAN, a letter from the facility stating that the recipient was admitted to the registry, the date admitted, and the SFAN registry number. During the audit period, Petitioner billed Respondent for "H" Supplement Payments in the total amount of $49,965.30 for eight separate recipients. Prior to the issuance of the audit letter, Petitioner did not submit, make, or deliver any "H" Supplement prior request for any of the eight recipients at issue. Despite the fact that the "H" Supplement payments were not prior authorized, Respondent made those payments to Petitioner.5 The parties stipulated that the eight recipients at issue were patients of Petitioner, suffered from AIDS, and received treatment from Petitioner for AIDS. The parties further stipulated that six of the eight recipients suffered from AIDS opportunistic diseases. There is no dispute as to whether the other two recipients suffered from disease, but there was no stipulation that the diseases were AIDS opportunistic diseases.6 There is no issue as to the quality of care rendered the eight recipients. Fraud is not at issue in this proceeding. Subsequent to the issuance of the audit letter, the only recipient for which Petitioner has presented a Western Blot confirmatory test is for the recipient identified with the initials J.F. and further identified in Petitioner's Exhibit G. Petitioner has not submit a Western Blot or IFA test for the seven other recipients at issue in this proceeding. Petitioner's medical records do not establish that, but for its failure to obtain prior authorization for each recipient, the subject "H" Supplements would have been paid by Respondent. Section 409.913(10), Florida Statutes, provides as follows: (10) The agency may require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished. Section 409.913(14), Florida Statutes, provides, in pertinent part, as follows: (14) The agency may seek any remedy provided by law, including, but not limited to, the remedies provided in subsections (12) and (15) and s. 812.035, if: * * * The provider has failed to maintain medical records made at the time of service, or prior to service if prior authorization is required, demonstrating the necessity and appropriateness of the goods or services rendered; The provider is not in compliance with provisions of Medicaid provider publications that have been adopted by reference as rules in the Florida Administrative Code; with provisions of state or federal laws, rules, or regulations; with provisions of the provider agreement between the agency and the provider; or with certifications found on claim forms or on transmittal forms for electronically submitted claims that are submitted by the provider or authorized representative, as such provisions apply to the Medicaid program . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner received overpayments from the Medicaid Program for "H" Supplement payments during the audit period in the amount of $49,965.30. It is further recommended that Petitioner be required to repay those overpayments. DONE AND ENTERED this 14th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2001.
The Issue The issues are whether Petitioner overpaid Medicaid reimbursements to Respondent for inpatient hospital services due to the lack of medical necessity for such services and, if so, the amount of the overpayment.
Findings Of Fact Respondent is a 226-bed community hospital in Sanford. It is an acute-care hospital with an emergency department. At all material times, Respondent has been an authorized Medicaid provider. For inpatient services, Respondent receives, under Medicaid, an all-inclusive per diem rate for all goods and services provided during a 24-hour period, less any third-party payments. Petitioner is the state agency responsible for the regulation of the Medicaid program in Florida. Petitioner is required to perform Medicaid audits of providers and to recover any overpayments. Pursuant to this authority, Petitioner conducted an audit of Respondent for the period from January 1, 2001, through March 31, 2002. Pursuant to its procedures, Petitioner duly informed Respondent of the audit, obtained from Respondent relevant medical and hospital records, issued a Provisional Agency Audit Report on January 24, 2006, obtained additional information from Respondent pertinent to the provisional findings, and issued a Final Agency Audit Report on October 19, 2006, which claimed a total overpayment of $286,357.54 based on Medicaid payments made to Respondent on behalf of 35 different recipients. (The report indicates two separate denials for each of four recipients, so 39 total transactions are listed.) The dispute in this case concerns the medical necessity of the inpatient hospitalization of each recipient. The Florida Medicaid Hospital Services Coverage and Limitations Handbook (Handbook) states that the purpose of the Medicaid program is "to provide medically necessary inpatient and outpatient services to recipients in the hospital." Handbook, page 1-1. This case involves paid claims for inpatient, not outpatient, services. The Handbook defines inpatient services as those services "rendered to recipients who are admitted to a hospital and are expected to stay at least 24 hours and occupy a bed, even though a bed is not actually utilized because the recipient is discharged or transferred to another hospital." Handbook, page 1-1. The Handbook provides that the day of admission is covered, but the day of discharge is not covered, unless it is also the day of admission. Handbook, page 2-22. The Handbook defines "grace days" as non-medically necessary days following the day of formal discharge when the recipient continues to occupy a hospital bed until an outside facility or residence can be found. These days are not reimbursable by Medicaid except for children under 21 years of age on "Department of Children and Families hold . . .." Medicaid will pay up to 48 hours of inpatient stay beyond the formal discharge day for these children while an alternative placement is located. The Handbook incorporates the limitation of medical necessity as follows: Medicaid reimburses for services that are determined medically necessary, do not duplicate another provider's service, and are: individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; not experimental or investigational; reflective of the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or service medically necessary or a covered service. Note: See Appendix D, Glossary, in the Florida Medicaid Provider Reimbursement Handbook, UB-92, for the definition of medically necessary. Handbook, pages 2-1 to 2-2. The Florida Medicaid Provider Reimbursement Handbook, UB-92, Appendix D, defines "medically necessary" as follows: Means that the medical or allied care, goods, or services furnished or ordered must: Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and Be furnished in a manner that is not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. "Medically necessary" or "medical necessity" for inpatient hospital services requires that those services furnished in a hospital on an inpatient basis could not, consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity or a covered service. The Florida Medicaid Provider Reimbursement Handbook, UB-92, Appendix D, page D-10. E. A. was admitted on January 6, 2001. Petitioner does not contest the medical necessity of inpatient services to treat E. A.'s acute exacerbation of chronic bronchitis from January 6-8. The parties' dispute concerns the medical necessity of the remaining ten days of E. A.'s hospitalization. (All calculations of duration of hospitalizations omit the day of discharge, pursuant to the above-cited provision from the Handbook. In this case, for instance, E. A. was discharged on January 19.) E. A., a 60-year-old male, presented to the emergency department with shortness of breath and a history of chronic obstructive pulmonary disease (COPD), emphysema, and hypertension. He had been unable to eat for the preceding four days due to respiratory distress. At the time of his admission, E. A. had been living for a short while with his sister, who was suffering from cancer. His relevant history included a shotgun wound to the left lung 30 years earlier. Respondent states in its proposed recommended order that E. A.'s chest X-rays showed acute infiltrate demonstrating pneumonia, although the discharge summary reveals that chest X-rays fail to reveal this condition, but acknowledged that sputum grain stains revealed a polymicrobial infection. More to the point, the X-ray reports dated January 6 and 8 note: "no focal infiltrate." However, the discharge summary described E. A.'s prognosis as poor because he was in "end-stage lung disease." In the emergency department, after treatment with bronchodilators, E. A.'s oxygen saturation rate was only 87 percent--not 94-100 percent, as mistakenly stated by Petitioner's expert, Dr. Ellen Silkes, an otolaryngologist whose practice is largely limited to outpatients. This low rate of oxygen saturation evidences hypoxia. E. A.'s arterial blood gases bore a pH of 7.28, evidencing, on the facts of this case respiratory acidosis, which results from excessive retained carbon dioxide due to poor lung function. E. A. was started on Albuterol and Atrovent by nebulizer at four-hour intervals, as well as a corticosteroid intravenously every six hours to relieve the swelling in the lungs. He received oxygen by nasal cannula. On January 10, the physician's notes state that E. A. still suffered from "severe COPD" secondary to smoking with bronchospasms. According to the notes, the first day that E. A. showed any improvement was January 12. On January 14 and 16, E. A. was still retaining excessive carbon dioxide and remained hypoxic, but showed some improvement by January 16 in terms of arterial blood gases. The physician's note for January 17 states that E. A. could be discharged as soon as arrangements for home health care were completed. E. A.'s hospitalization was medically necessary from January 6-17. His hospitalization after January 17 was not medically necessary. Petitioner improperly denied January 9-16, given that the day of discharge is excluded. Thus, for E. A., Petitioner should have denied two days, not all ten days. A. A. was admitted on June 19, 2001. Petitioner does not contest the medical necessity of inpatient services to treat A. A.'s gastrointestinal bleeding from June 19-20. The parties' dispute concerns the medical necessity of the remaining 12 days of A. A.'s hospitalization. (Some of Petitioner's calculations are incorrect. For instance, in this case, Petitioner does not deny July 2-5, even though, undoubtedly, its position as to the lack of medical necessity as to the earlier dates would mandate the same position as to the later dates. This recommended order does not disturb Petitioner's implicit acceptance of the medical necessity of any dates, even when it appears to be in error.) A. A., a 51-year-old male, presented to the emergency department with abdominal pain, diarrhea, and black tarry stools. His recent history included bloody vomit and a diagnosis, a few months earlier, of a pulmonary embolism. A. A. had discontinued taking Coumadin, a blood thinner, due to nosebleeds. A. A. had been diagnosed with AIDS in 1998 and had lost 30 pounds in one month. At admission, A. A.'s hemoglobin and hematocrit levels were critically low at 5.1 and 15.5, respectively, and remained critically low the following day when, after A. A. received transfusions of two units of packed red blood cells, his hemoglobin and hematocrit levels were only 6.8 and 20.0, respectively. Dr. Silkes denied the hospitalization after June 20 because an upper gastrointestinal endoscopy revealed, on June 19, no acute bleeding, and a bleeding scan the following day was negative. However, according to the physician's notes, A. A. was continuing to experience diarrhea on June 20, even though he was starting to feel better. The course of treatment of A. A. was complicated by his recent history of pulmonary embolism and his inability to report an accurate history. By June 21, A. A.'s severe anemia had been corrected, but he was diagnosed with candida, an opportunistic fungal infection common in AIDS patients. This diagnosis would explain the vomiting of blood. Generally, the treatment dilemma posed by A. A. was that efforts to increase his clotting time to stop the bleeding raised the risk of pulmonary embolism. The physicians debated whether to install a Greenfield filter to stop the passage of a blood clot. The filter is introduced under X-ray control through the femoral vein into the inferior vena cava, where it is anchored, so that it allows the passage of blood, but not the passage of a blood clot. But the Greenfield filter is contraindicated in the presence of A. A.'s fever of 101 degrees and elevated white blood counts. Physicians introduced Coumadin to minimize the risk of clots, but A. A.'s low platelet count required the discontinuation of Coumadin on June 30. A. A.'s International Normalization Ratio (INR) was 4.2, which is well above the range of 2.0-3.0 and thus indicative of the fact that A. A.'s blood was taking too long to clot. The standard of care in 2001 precluded safe outpatient management of a complicated patient such as A. A., given his twin risks of pulmonary embolism and bleeding, either of which could result in his death. A. A.'s Coumadin could not safely have been adjusted on an outpatient basis. The physicians restarted the Coumadin on June 24 and doubled its dosage the following day. As they were working on adjusting the blood thinner, though, A. A. continued to suffer nightly fevers of 103 degrees, and the physicians needed to monitor him closely for the next week for this reason too. On June 28, A. A. reported that he was feeling better, but the physicians needed to monitor him for a recent reduction in his Coumadin dosage. A. A. was reported as "alert and comfortable" on July 2. A. A.'s hospitalization was medically necessary from June 19 through at least July 2. Petitioner improperly denied all ten days of this hospitalization. T. B. was admitted on May 15, 2001. Petitioner does not contest the medical necessity of inpatient services to treat T. B.'s esophageal cancer and tuberculosis from May 15-17 and The parties' dispute concerns the medical necessity of the ten days that Dr. Silkes denied of the remaining 14 days of T. B.'s hospitalization. (It is unclear why Petitioner denied only ten days when Dr. Silkes denied May 18-20 and May 22-June 1--a total of 14 days, or 13 days exclusive of the day of discharge. But, as noted above, in cases such as this, the recommended order will consider only whether up to ten days within this period are allowable as medically necessary.) T. B., a 47-year-old male, presented to the emergency department with difficulty swallowing. He had visited a physician in February 2001 with the same complaint, and the physician had recommended an upper gastrointestinal series. Due to financial constraints, T. B. did not undergo this procedure until late April, when he was found to have a high-grade obstruction consistent with a tumor. T. B.'s recent history included the loss of 25 pounds. An endoscopy with biopsy performed on May 16 revealed a high-grade carcinoma of the esophagus. The physician planned to commence preoperative chemotherapy and radiation therapy to shrink the lesion, but, based on sputum collected on May 18, it was discovered that T. B. had mycobacterium tuberculosis. Physicians had suspected the tuberculosis from the time of admission when they placed T. B. in a negative airflow isolation room. Treatment of the tuberculosis necessarily preceded the preoperative chemotherapy recommended for T. B.'s carcinoma. The sputum sample revealed rare acid-fast bacilli, for which the standard of care in 2001 typically required two to three weeks of treatment before isolation precautions could be discontinued. T. B. remained in isolation at least through May 31. In addition, T. B. suffered significant pain from the carcinoma. By May 23, he was on patient-controlled analgesia in the form of a morphine pump, which is not available outside of an acute-care hospital. T. B.'s hospitalization was medically necessary from May 15 through at least June 1. Petitioner improperly denied all ten days of this hospitalization that it denied. R. B. was admitted on December 3, 2001. Petitioner does not contest the medical necessity of inpatient services to treat R. B.'s respiratory failure from December 3, 2001, to January 2, 2002, and January 8, 2002. Based on Petitioner's prehearing stipulation, the dispute concerns only seven days' hospitalization. R. B., a 59-year-old female, presented to the emergency department with acute respiratory distress and respiratory failure. She was immediately intubated. Her family insisted upon aggressive treatment of, among other things, her bilateral pneumonia caused by a virulent staph infection. R. B. required a tracheotomy on December 20 due to the difficulty in weaning her from the ventilator. She required the placement of a percutaneous endoscopic gastrostomy (PEG) tube on January 1. The discharge summary describes R. B. as "very frail and fragile" and her hospitalization as "very prolonged and complicated." On December 23, when R. B. was finally weaned from the ventilator, her family agreed to a do-not-resuscitate (DNR) code for her. The dispute arises from an incident on January 3 when R. B. fell when trying to get out of bed. Her mental status deteriorated, probably due to malignant disease. Physicians ruled out sepsis in the bloodstream, but X-rays revealed multiple nodules in the lung and liver. On January 8, a CT- guided lung biopsy of one of the nodules confirmed malignant disease. Two days later, the physician stated that a consultation with hospice was indicated. Upon the agreement of the family, R. B. was discharged to her home under hospice care on January 12. Dr. Silkes is substantially correct in her opinion. The diagnostic work after January 2 only supported the poor prognosis that had become obvious to R. B.'s family ten days earlier and certainly was not palliative in nature. R. B.'s hospitalization after January 2, 2002, was not medically necessary--except for January 8, which Dr. Silkes initially conceded, and an additional two days, which Petitioner conceded in its prehearing stipulation. Petitioner properly denied seven days of this hospitalization. J. B. was admitted on January 5, 2002. Petitioner does not contest a 23-hour observation on January 5, but this would generate a reimbursement considerably smaller than that sought by Respondent for inpatient services for that day, so Petitioner has essentially denied the entire hospitalization, which consists of 16 days. J. B., a 59-year-old male, presented to the emergency department with shortness of breath and atrial fibrillation with fast ventricular rate. He had been diabetic for 25 years. He had been laid off from construction work in August 2001, and had arthritic knees which prevented his return to work. Since losing his job, J. B. had been feeling poorly and had lost 20 pounds. J. B.'s pulse at the time of his arrival was 165, and it dropped to 105 within his first six hours at the hospital. J. B.'s relevant history included congestive heart failure, edema of the extremities, and nocturnal dyspnea. A chest X-ray on the day of admission revealed a dense mass in the left lobe. Physicians started a calcium channel blocker to regulate J. B.'s rapid heart beat and a diuretic to eliminate his excess fluids and swelling. J. B. was feeling much better by January 7, as the physicians had controlled his rapid heart beat. On that day, J. B. underwent a stress test, which was negative. However, a CT scan performed on January 8 and reported the following day revealed a left hilum mass that proved to be advanced carcinoma. The physicians decided that J. B. needed a bronchoscopy to biopsy the lung mass and a thoracentesis, in which a needle is inserted between the ribs to extract fluid for the purpose of determining the fluid's source. However, J. B.'s atrial fibrillation complicated their plans. On January 8, J. B. remained in atrial fibrillation, and the physicians were considering starting him on Coumadin because patients with atrial fibrillation are at high risk of clotting due to the poor expulsion of blood into the ventricle. Introduction of this blood-thinning agent before other invasive procedures requires first that the physicians stabilize the patient. This dilemma delayed the introduction of the blood- thinning agent and prevented treating J. B. as an outpatient. Once stabilized on Coumadin, J. B. underwent the two diagnostic procedures on January 11. They revealed that he was suffering from stage IV squamous cell carcinoma, according to a physician's report dictated on January 14 and transcribed the following day. The physician ordered additional CT scans to determine the extent of the metastatic disease before deciding on a course of treatment. A whole body bone scan was performed on January 15 and was essentially negative. However, the carcinoma had metastasized to the left hilum and, by report dated January 15, a physician noted that J. B. would not benefit from surgery, chemotherapy, or radiation, although palliative radiation could offer him some relief. An IV port for chemotherapy (not radiation) was placed on January 16--not January 6, as noted by Dr. Silkes in her report. Coumadin had been discontinued in advance of the procedure and resumed on the day of the procedure, but required adjustment for the next several days, as J. B.'s INR was too low, indicative of excessive clotting. Although the administration of the chemotherapy through the IV port could have been done on an outpatient basis, J. B. was comfortable at all times after January 15, and with no effective treatment possible, his hospitalization remained medically necessary until the physicians were able to adjust his Coumadin so that his INR reached the normal range. J. B.'s hospitalization was medically necessary from January 5 through January 22, on which date he was discharged. Petitioner improperly denied the 16 days of inpatient services. N. C. was admitted on February 8, 2002. Petitioner does not contest the medical necessity of inpatient services to treat N. C.'s intracranial hemorrhage from February 8-10. The parties' dispute concerns the medical necessity of the remaining 21 days of N. C.'s hospitalization. N. C., a 40-year-old female, presented to the emergency department with a complaint of passing out and no significant medical history. N. C. was a single mother of a developmentally disabled child. Her father resided in a nursing home and suffered from dementia, so her siblings were her decisionmakers concerning care. At admission, N. C. was already in a vegetative state, suffering from a massive intracranial hemorrhage. Her blood pressure was 213/107. She was immediately intubated and given Mannitol to reduce intracranial pressure and Dilantin to prevent seizures. On February 8, a neurologist evaluated N. C. and found her a poor candidate for surgery to evacuate the intracranial hematoma due to the likelihood of extensive consequent neurological deficits. The neurologist discussed the possibilities and the "extremely poor" prognosis with the siblings, who decided not to pursue surgery and instead allow N. C. to be "managed medically." The physicians asked the siblings to consider a DNR code for N. C. N. C. made no meaningful progress in the following days. Respondent was unable to contact her siblings until February 19, and they asked for two days within which to make the decision whether to place N. C. on a DNR code. On February 22, they decided to place N. C. on a DNR code and withdraw the ventilator. Three days later, the physician discussed with the siblings the possibility of placement in a nursing home. Three days after this discussion, the siblings agreed on inpatient hospice care for N. C. On March 4, IV fluids and medications and the nasogastric feeding tube were withdrawn, and N. C. was transferred to a nursing home under hospice care. N. C.'s hospitalization was medically necessary through February 22 because a nursing home cannot accept a patient on a ventilator, N. C.'s course following the stroke could reasonably be observed for a couple of weeks to determine if improvement--however unlikely--might take place, and the siblings reasonably required this long to make this difficult decision. From February 23 through discharge, the inpatient services provided N. C. were no longer medically necessary, so Petitioner properly denied nine days of the 21 days that it denied for this recipient. N. Ch. was admitted on May 23, 2001. Petitioner does not contest the medical necessity of inpatient services to treat N. Ch.'s cellulitus and osteomyelitis from May 23 to June 24. The parties' dispute concerns the medical necessity of the remaining 46 days of N. Ch.'s hospitalization. N. Ch., a 38-year-old male, presented to the emergency department with wounds to both legs and loss of feeling in both feet and a history of fractures to both tibias 20 years ago followed by osteomyelitis four years ago. Despite considerable hospital treatment to both legs, consisting of antibiotics, hyperbaric oxygen, debridement, and skin grafts, drainage of the wounds persisted. Four grainy wounds on both legs penetrated to the bone, and N. Ch. had suffered some bony damage from the persistence of these infected wounds. A physician performed a surgical debridement of the wounds on May 26, and a vacuum- assisted closure device was applied to the wound on the following day. This device produces negative air pressure to stimulate a chemical change in the tissues to enhance the migration of new blood vessels and granulation tissue over the area of the wound. The pump was changed often. On June 22, N. Ch. underwent a second debridement and a pump was reapplied to the wounds on June 24. The issue in this case involves the use of hyperbaric oxygen treatment on an inpatient basis. On June 7, a physician reasonably recommended 20, 90-minute hyperbaric oxygen treatments. The treatments, which accelerate wound healing, began the next day. Dr. Silkes correctly finds no medical necessity after N. Ch. became stable after the second debridement. Although he later suffered some fever, apparently from his reaction to an antibiotic, and gastroesophagael reflux, as well as some adverse reactions to IV and peripherally inserted central catheter lines, N. Ch. could have been managed as an outpatient after June 24. Nothing suggests that the vacuum-`assisted closure device requires hospitalization, and hyperbaric oxygen treatment clearly does not require hospitalization. Respondent contends that inpatient services remained medically necessary after June 24 because Medicaid would not pay for hyperbaric oxygen treatment on an outpatient basis. Medical necessity is driven by medical, not legal, considerations. If the sole reason for hospitalization is to obtain a medically necessary good or service that Respondent has restricted to the inpatient setting, then the provider community improperly circumvents Petitioner's restriction. If there is no other reason to continue to hospitalize a recipient, such as N. Ch., the decision to do so in order to obtain for him a concededly medically necessary service--that does not otherwise require hospitalization--is unwarranted. Petitioner properly denied the 46 days of inpatient services for N. Ch. after June 24. J. C. was admitted on February 24, 2002. Petitioner does not contest the medical necessity of inpatient services to treat J. C.'s coronary artery disease and lymphoma on February 24 and March 3-8. In its proposed recommended order, Respondent does not contest Petitioner's denial of the "last two days," which apparently are March 9-10. The parties' dispute concerns the medical necessity of the remaining six days of hospitalization from February 25 through March 2. J. C., a 61-year-old female, presented to the emergency department with worsening chest pain over the past two weeks and a history of coronary artery disease. She also had an undiagnosed mass on her neck. She had previously failed outpatient treatment and was admitted to the hospital. Two weeks earlier, J. C. was to have had an outpatient biopsy of the neck mass, but the anesthesiologist declined to administer anesthesia until her unstable angina was addressed. J. C. went to her primary care physician, who referred her to a cardiologist, but, prior to seeing him, J. C. went to the emergency department. On February 25, the physician's notes indicate that J. C. was stable and without chest pain. The cardiologist performed a cardiac catheterization on February 26 and found 100 percent blockage of the left anterior descending artery, 80 percent blockage of the proximal circumflex, and other narrowings that were not amenable to angioplasty and stenting, so he recommended coronary artery bypass grafting. Heart surgery could not proceed until physicians learned the nature of the neck mass. A biopsy was performed on February 28, which revealed B-cell malignant lymphoma. The oncologist preferred to commence chemotherapy after the bypass operation, so this was performed on March 3. J. C. was extubated on March 4, but developed acute respiratory distress on March 5 and required a transfusion the following day. However, Dr. Silkes is correct in finding the hospitalization from February 25 through March 2 medically unnecessary. The procedures performed during this period could have been done on an outpatient basis. The record does not support Respondent's argument that her unstable angina required inpatient management. Petitioner properly denied these six days of inpatient services. R. LaB. was admitted on April 2, 2001. The parties' dispute concerns the medical necessity of the last day of inpatient service on April 12. This is the first case considered in this recommended order handled by Dr. Alan Yesner, an internist whose practice is more evenly divided between inpatients and outpatients than is Dr. Silkes' practice. R. LaB., a 47-year-old female, presented to the emergency department with abdominal pain of two days' duration and a history of COPD, hypertension, and diabetes. She was rushed to abdominal surgery to reduce an incarcerated hernia. The surgery was long. R. LaB. suffered respiratory failure and required intubation. Dr. Yesner is correct in opining that R. LaB.'s hospitalization after April 11 was not medical necessary. She was stable and on appropriate medication, so Petitioner properly denied one day of inpatient service for R. LaB. J. L. was admitted on June 12, 2001. The parties' dispute concerns the medical necessity of the seven days of inpatient services. J. L., a 47-year-old male, presented to the emergency department with complaints of a gradual increase of abdominal girth and was found to have blood in his stool. Lab work indicated an elevated INR, elevated bilirubin, and bacteria in his urine. The physician concluded that J. L. suffered from primary biliary cirrhosis, for which he had been treated since at least 1998. J. L. admitted that he had become noncompliant with his medication after a divorce. A CT scan revealed a probable stone obstructing the right ureter, causing urine to back up and flood the right kidney. A successful laser lithotripsy was performed on June 17 with the complete fragmentation of the stone and the installation of a stent, which would facilitate drainage, to be removed a few days later. J. L. tolerated the procedure well, and on the next day he reported feeling better without any pain in his flank. Dr. Yesner notes the "late schedule" of the lithotripsy, but Respondent did not have a lithotripter in 2001 and had to schedule it for use at the hospital. The hospitalization was medically necessary through June 17 due to the pain, advanced kidney disease, and potential kidney problems presented by the blockage, prior to its surgical fragmentation. Petitioner should have denied two days, not seven days. C. M. was admitted on April 2, 2001. Petitioner does not contest the medical necessity of admission for 23-hour observation only on April 2 for end-stage sarcoidosis, pneumonia, and gastrointestinal bleeding. The parties' dispute concerns the medical necessity of the remaining 31 days of C. M.'s hospitalization, which concluded with her death. C. M., a 55-year-old female, presented to the emergency department with shortness of breath and weakness. She is a Jehovah's Witness, so she declines blood transfusions on religious grounds. By April 4, C. M.'s blood gases, although not within normal ranges, were out of critical ranges. C. M. suffered respiratory failure and required intubation on April 16. Her hemoglobin gradually dropped after this, but treatment was limited to iron and vitamins due to the refusal of the patient to accept a blood transfusion. This treatment was unsuccessful. The family supported C. M.'s decision not to accept a blood transfusion, but insisted on full, aggressive treatment, including CPR. C. M. went into cardiac arrest on May 3 and CPR failed to revive her. Dr. Silkes states that Respondent should have arranged for hospice care during the first day of hospitalization. C. M. was not then on a ventilator, so a hospice would not have objected to taking C. M. on that ground, but her respiration was critically impaired for the first three days of her hospitalization and her prognosis was not such as to render hospital care medically unnecessary. It was medically necessary to stabilize C. M.'s respiration during these first three days, but her hemoglobin issues could have been addressed by home health care for the next 11 days. The medical necessity of inpatient services resumes, though, after C. M.'s respiratory failure of April 16 and continues to the end of her hospitalization. The first three days of inpatient services were medically necessary, the next 11 days of inpatient services were not medically necessary, and the last 17 days of inpatient services were medically necessary, so Petitioner should have denied 11 days, not 31 days. M. M. was admitted on March 3, 2001. Petitioner does not contest the medical necessity of inpatient services to treat acute asthmatic bronchitis with a history of coronary artery bypass graft, asthma, sarcoidosis of the lung, and diabetes from March 3-12, which Petitioner later extended to March 13. The parties' dispute concerns the medical necessity of the remaining three days of M. M.'s hospitalization, which Respondent's expert frankly conceded was difficult to justify. As Dr. Yesner noted, M. M. was stabilized on oral medication by March 11, and he allowed a couple of additional days to monitor her. M. M. experienced hypoglycemia on March 16, but this is a condition that, according to Dr. Yesner, is not unusual with the Prednisone that M. M. was taking, and hypoglycemia is typically managed on an outpatient basis. Petitioner properly denied the last three days of M. M.'s hospitalization. J. P. S. was admitted on January 4, 2001. Petitioner does not contest the medical necessity of inpatient services to treat J. P. S.'s obstruction of the common bile duct. The parties' dispute concerns the medical necessity of the last three days of his hospitalization. J. P. S., a 54-year-old male, presented to the emergency department with severe jaundice and a history of diabetes, congestive heart failure, and triple coronary artery bypass graft performed in 1997, although he displayed no significant cardiac abnormalities during this hospitalization. During the initial examination, J. P. S. went into respiratory arrest and required intubation. The gastroenterologist found J. P. S. ready for discharge, from a gastroenterological perspective, on January 13. but J. P. S. immediately developed COPD symptoms, including shortness of breath and edema. According to the physician notes, J. P. S. was sufficiently stable for discharge on January 15, but a note for the next day says to hold the discharge pending cardiac evaluation. Respondent discharged J. P. S. three days later, after physicians could monitor the level of Digoxin to ensure that J. P. S. was safe for discharge. P. S.'s entire hospitalization was medically necessary. Petitioner improperly denied the last three days of inpatient services. J. P. was admitted on December 8, 2001. Petitioner does not contest the medical necessity of services to treat J. P.'s fever from December 8-12. The parties' dispute concerns the medical necessity of the remaining 14 days of J. P.'s hospitalization. J. P., a 27-year-old male, presented to the emergency department with high-grade fevers and severe headaches and a history of AIDS. Dr. Silkes approved the treatment of the fever until it ended on December 12. The fever was likely caused by J. P.'s toxoplasmosis of the central nervous system. This is an opportunistic condition not unusual in immunocompromised patients. Candida fungal infection likely caused J. P.'s complaints of pain on swallowing, as this too is an opportunistic condition. Additionally, a blood culture revealed a staph infection. Through December 18, J. P. was continuing to experience fevers of up to 101 degrees. At the same time, it was necessary to address the toxoplasmosis before it extended to other organs. This required the sequential administration of IV antibiotics and careful, continual monitoring of the patient for his clinical response to treatment. On December 20, J. P. underwent a bone marrow biopsy to rule out the extension of toxoplasmosis in the bone marrow or the presence of tuberculosis. This test was negative, which was a precondition for discharge. The pathology report was "received" on December 21, but not "printed" until December 27. However, J. P. did not complete his IV administration of Doxycycline until December 23, when the medical necessity for his inpatient services ended. Petitioner should have denied three days, not 14 days. W. P. was admitted on June 18, 2001. Dr. Silkes would allow only a 23-hour observation on the day of admission for the treatment of lung cancer and tuberculosis. The parties' dispute concerns the medical necessity of 13 days of his hospitalization from June 18 through July 1 (even though he was not discharged until July 13). W. P., a 59-year-old male, presented to the emergency department with severe coughing up of blood and a recent loss of 40 pounds. A chest X-ray at admission revealed a large mass in the upper left lobe of the lungs. Lab work suggestive of anemia correlated with a malignancy as its source. Sputum to test for acid fast bacillus was taken, and a consult was immediately arranged with a pulmonary specialist to consider a bronchoscopy and to take a biopsy. A CT scan of the chest on June 18 revealed abnormal soft tissue density filling the right upper lobe, two tumors, and numerous nodes. The bronchoscopy on June 19 revealed 80 percent obstruction of the right main bronchus secondary to an endobronchial lesion and 100 percent obstruction of the right upper lobe. A biopsy of the right mainstem bronchus revealed a squamous cell carcinoma. A physician noted in his consultation report that W. P. was to complete his metastatic survey on the day of the report--June 22--after which they would discuss palliative treatment. The report states that the patient understands that he will unlikely live more than six months. Subsequently, acid fast bacillus, which had originally not been detected, was found, so W. P. was placed in isolation on June 26. He had been experiencing elevated white blood counts and fevers. He was placed on antituberculosis treatment, which, as noted above, typically takes two or three weeks until the patient can be removed from isolation. July 10 was W. P.'s first day without fever. On this date, Respondent sent his records to the Health Department to facilitate a transfer to a tuberculosis hospital. He was discharged on July 13. W. P.'s entire hospitalization was medically necessary. Petitioner should not have denied any of the 13 days that it denied. M. Pr. was admitted on December 18, 2001. Petitioner does not contest the medical necessity of inpatient services to treat M. Pr.'s coronary artery disease from December 18-27. The parties' dispute concerns the medical necessity of the remaining seven days of M. Pr.'s hospitalization. M. Pr., a 58-year-old male, presented to the emergency department with a recent cardiovascular accident while out of state. A cardiac catheterization revealed severe triple vessel coronary artery disease. On December 19, M. Pr. underwent a four-vessel bypass. Post-operatively, however, M. Pr. fell while on the commode. The dispute in this case arises due to the unavailability of rehabilitation facilities that would take M. Pr. after his fall. He was suitable for discharge on December 28, but no facility could be found to receive him. These are "grace days," as noted in the Handbook and are available, on a limited basis, for persons under 21 years of age, but, by negative implication, are unavailable for adults. Thus, medical necessity dictated that Respondent discharge M. Pr. on December 27, so the inpatient services are not reimbursable after December 28, given that the day of discharge is not allowable. Dr. Silkes' determination was correct in this case. Petitioner properly denied seven days' inpatient services for M. Pr. A. R. was admitted on December 30, 2001. Petitioner has denied the entire 14 days of A. R.'s hospitalization, although Dr. Silkes approved one day's inpatient services, on the day of admission, for the treatment of ovarian cancer. A. R., a 63-year-old female, presented to the emergency department with vomiting on the day of admission, progressive abdominal distension, anorexia, weight loss over the past month, and a 15-year history of bronchial asthma. A CT scan of A. R.'s thorax at the time of admission revealed a large collection of fluid in the abdominal cavity. At this time, a physician removed 4.5 liters of fluid from the cavity, and A. R., not surprisingly, began to feel much better. A report on January 3--delayed probably due to the holidays-- indicated the presence of scattered malignant cells in the withdrawn fluid compatible with carcinoma. Metastatic ovarian cancer was subsequently confirmed. A. R.'s case was complicated by the withdrawal of this large volume of fluids, which required continual monitoring of her electrolytes, and the sudden exacerbation of her dementia on January 2, which would impede outpatient services, as well as the initiation of chemotherapy. The dementia, which had been progressive for the past six months, was likely a reaction to the carcinoma. By January 11, a physician recommended hospice placement given A. R.'s incurable tumor. A. R.'s daughter agreed on this day to hospice placement. This is the day that medical necessity for inpatient services ended. Petitioners should have denied three days, not 14 days. The remaining days were medically necessary. E. S. was admitted on May 4, 2001. Petitioner does not contest the medical necessity of inpatient services to treat E. S.'s pancreatitis and multisystem failure from May 4-23. The parties' dispute concerns the medical necessity of the remaining 24 days of her hospitalization, which ended with her death. E. S., a 64-year-old female, presented to the emergency department with nausea and abdominal pain and a history of hypertension and abuse of alcohol and tobacco. She was found to have elevated pancreatic enzymes. On May 8, E. S. underwent a laparoscopic removal of her gallbladder, which she tolerated well, but soon afterwards suffered respiratory failure. E. S. was then placed on a ventilator. Problems with malnourishment and then kidney failure precluded a successful weaning her off the ventilator. On May 23, the family agreed to a DNR code. May 23 marks the last day that Dr. Silkes found that E. S.'s hospitalization was medically necessary. Care after this date was entirely supportive and not medically necessary; however, no hospice or skilled nursing facility would take E. S. because she could not be weaned off the ventilator. The unavailability of an alternative, less costly setting does not automatically render the inpatient care of a recipient medically necessary. The circumstances dictate whether inpatient services to such a patient are medically necessary. Here, it is impossible to find that services after May 23 were medically necessary. Dr. Silkes was correct in her opinion. Petitioner properly denied all 24 days of inpatient services for E. S. D. S. was admitted on March 24, 2001. Petitioner does not contest the medical necessity of inpatient services to treat D. S.'s osteomyelitis of the right foot from March 24-25 and March 30-April 10. (Originally, Dr. Silkes allowed only March 24-25 and March 30-April 6, but, on February 7, 2007, she revised her opinion to allow the additional four days to April 10.) In its prehearing statement, Petitioner conceded that only three of the original ten denied days remained at issue, as it was agreeing that an additional seven days were medically necessary. The parties' dispute concerns the medical necessity of the remaining three days, although it is not clear what three days Petitioner is contesting. D. S., a 57-year-old female, presented at the emergency department with a "hole in the right foot" and a history of diabetes. She dropped a can of juice on her foot on January 1, and the foot had become progressively infected since that time. On the day of admission, she underwent surgery for the removal of fourth and fifth metatarsal bones and toes of the right foot. She did not heal properly and required followup surgery on April 7 to trim some of the necrotic flap, as the physicians considered the possibility of a below-knee amputation. On April 13, the surgeon probed the wound, found no hidden pockets, and discharged D. S. Regardless what three days that Petitioner continues to find were not medically necessary, the entire hospitalization was medically necessary. J. W. was admitted on August 20, 2001. Petitioner does not contest the medical necessity of inpatient services to treat J. W.'s multiple organ failure from August 20 to September 14. The parties' dispute concerns the medical necessity of the remaining two days of J. W.'s hospitalization, at which time he died. J. W., a 48-year-old male, presented to the emergency department with a two or three-day history of progressive congestive heart failure with pulmonary edema, atypical chest pain, and increasing abdominal girth. His history included nonischemic cardiomyopathy with minimal coronary artery disease, chronic alcohol abuse, pulmonary hypertension, chronic atrial fibrillation requiring anticoagulation therapy, hepatitis B and C, chronic renal insufficiency, and chronic congestive heart failure with multiple hospitalizations. On admission, his INR was 6.6, indicative of very slow clotting. Despite the care of numerous consultants, J. W. suffered increased respiratory failure on September 5, at which time he was intubated. He received a Greenfield filter on September 7 to prevent further pulmonary clots. Starting September 10, and continuing everyday thereafter, J. W. required dialysis due to renal failure. J. W. was on total parenteral feeding as of September 14. The family, whose availability had been a problem, agreed to a DNR code on September 17. Respondent claims in its proposed recommended order that a DNR code is a precondition to hospice care, but no competent evidence establishes this fact. Dr. Silkes and Petitioner properly denied the last two days because they were not medically necessary. M. W. was admitted on June 10, 2001. Petitioner does not contest the medical necessity of inpatient services to treat M. W.'s ventricular fibrillation and complications from June 10- The parties' dispute concerns the medical necessity of the remaining seven days of M. W.'s hospitalization. M. W., a 31-year-old male, presented to the emergency department with cardiopulmonary arrest after his wife found him slumped on the sofa, seizing. On arrival, he was found to be in ventricular fibrillation, and he was intubated. Physicians restored a normal rhythm, but M. W. suffered a seizure in the emergency department, so he was given large doses of Dilantin. M. W. had suffered brain damage from cerebral anoxia. M. W. was extubated on June 13, and his breathing remained stable. He remained in normal sinus rhythm. M. W. began to receive Librium on June 13 to sedate him. The cardiologist proposed a cardiac catheterization, but M. W. refused. An EKG on June 15 found a conduction defect in M. W.'s heart that was suggestive of Wolff Parkinson White syndrome. The cardiologist then determined, on June 16, that M. W. required an electrophysiology study to rule out Wolff Parkinson White syndrome. In 2001, Respondent lacked the equipment to perform this study, for which M. W. remained too confused to participate on June 18 anyhow. Physicians continued to monitor M. W.'s cardiac rhythm, and, when a bed opened at Florida Hospital, Orlando, which had the necessary equipment, Respondent promptly transferred M. W. on June 22. During the transfer, the cardiac monitor continued to check M. W.'s rhythm due to the risk of another cardiac incident until the underlying cardiac abnormality was assessed and treated. Petitioner improperly denied the final seven days of M. W.'s hospitalization. M. W. had suffered a serious cardiac event. Physicians had not yet ruled out all possible reasons for the event and needed to address a promising possibility of Wolff Parkinson White syndrome, so M. W. remained at risk for another event. He was confused from the brain damage. All of these factors militate in favor of finding that the remaining seven days of inpatient services were medically necessary. E. A. $1666.62 R. B. $5703.18 N. C. $7332.66 N. Ch. $38,332.26 J. C. $4888.44 R. LaB. $833.31 J. L. $1666.62 C. M. $9166.41 M. M. $2499.93 The total overpayment is $104,309.97, which breaks down as follows: J. P. $2444.22 M. Pr. $5703.18 A. R. $2444.22 E. S. $19,999.44 J. S. $1629.48
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding overpayments totaling $104,309.97 during the audit period and requiring that Respondent repay this amount, imposing an administrative fine of $1000, requiring Respondent to prepare a corrective action plan, and reserving jurisdiction to remand the case to the Division of Administrative Hearing for a determination of Petitioner's entitlement to statutory costs, if any. DONE AND ENTERED this 6th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 June, 2007. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building 3116 2727 Mahan Drive Tallahassee, Florida 32308 Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32304-0551 William Blocker, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Daniel Lake, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III, Mail Stop 3 Tallahassee, Florida 32308 Tracy Cooper, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner received Medicaid overpayments and, if so, the total amount of the overpayments.
Findings Of Fact AHCA is charged with administration of the Medicaid program in Florida pursuant to Section 409.907, Florida Statutes. Petitioner is a durable medical equipment provider that provided Medicaid services to Medicaid beneficiaries pursuant to a valid Medicaid Provider Agreement with AHCA under provider number 9512721 00. Petitioner was an authorized Medicaid provider during the period of October 1, 1999, through September 30, 2001, which is the audit period at issue here. AHCA conducted an audit of paid Medicaid claims for services claimed to have been performed by Petitioner from October 1, 1000, through September 30, 2001. On October 16, 2002, AHCA issued a Final Agency Audit Report ("FAAR") requesting Petitioner to reimburse AHCA in the amount of $28,407.90, for Medicaid claims submitted by and paid to Petitioner, for services allegedly rendered during the audit period. When the FAAR was issued, AHCA's claims for overpayment were based upon audit findings that paid Medicaid claims for certain services performed by Petitioner did not meet Medicaid requirements. The deficiencies in the subject Medicaid claims included a lack of documentation of required medication for nebulizer equipment, payments in excess of allowable total amounts for rent-to-purchase equipment, and payments for portable oxygen with a lack of documentation that the attending practitioner has ordered a program of exercise or an activity program for therapeutic purposes, that the recommended activities cannot be accomplished by the use of stationary oxygen service, and that the use of a portable oxygen system during exercise or activity results in improvement in the individual's ability to perform the exercises or activities. During the subject audit period, the applicable statutes, rules, and Medicaid handbooks required Petitioner to retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. Petitioner had to retain these records for at least five years from the dates of service. Petitioner had a duty to make sure that each claim was true and accurate and was for goods and services that were provided in accordance with the requirements of Medicaid rules, handbooks, and policies, and in accordance with federal and state law. Medicaid providers who do not comply with the Medicaid documentation and record retention policies may be subject to administrative sanctions and/or recoupment of Medicaid payments. Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped. Claire Cohen, AHCA's analyst, generated a random list of 30 Medicaid recipients (cluster sample) who had received services by Petitioner during the audit period. In addition, AHCA generated work papers revealing the following: the total number of Medicaid recipients during the audit period; the total claims of Petitioner, with dates of services; the total amount of money paid to the Petitioner during the audit period; and worksheets representing the analyst's review of each recipient's claims for the audit period. After Ms. Cohen reviewed the medical records and documentation provided by Petitioner, she reviewed the Medicaid handbook requirements, and arrived at a figure of $7,572.13 as the total overpayment for all cluster sample claims. Using the Agency's formula for calculating the extrapolated overpayment, Ms. Cohen determined that the overpayment in this case amounted to $29,703.63. Ms. Cohen then prepared the June 20, 2002, Preliminary Agency Audit Report (PAAR) and mailed it to Petitioner. At that point, the case was reassigned to Ellen Williams, a program analyst/investigator. Ms. Williams reviewed additional documentation submitted by Petitioner, and on October 16, 2002, issued on behalf of AHCA, the FAAR, which reduced the alleged overpayment to $28,407.90. Part of this reduction resulted from Petitioner's paying $369.97 to satisfy the issue concerning payments in excess of allowable totals for rent-to-purchase equipment. At the hearing, Ms. Williams testified that the adjusted overpayment amount was $27,473.27. The formula used by AHCA is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by AHCA are valid formulas. The DME/Medical Supply Services Coverage and Limitations Handbook provides, in part: Medicaid reimburses for portable oxygen when a practitioner prescribes activities requiring portable oxygen. The oxygen provider must document the following information in the recipient's record: the recipient qualifies for oxygen service; the attending practitioner has ordered a program of exercise or an activity program for therapeutic purposes; the recommended exercises or activities cannot be accomplished by the use of stationary oxygen services; and the use of a portable oxygen system during the activity or exercise results in an improvement in the individual's ability to perform the activities and exercises. The DME/Medical Supply Services Coverage and Limitations Handbook also provides, in part: Medicaid may reimburse for a nebulizer if the recipient's ability to breathe is severely impaired. The documentation of medial necessity must include required medications. The following payments are claimed by AHCA to be overpayments for failure to provide documentation of medical necessity and required medications: Recipient Date of Service Procedure Overpayment 4 7/19/00 E0570 $106.70 9 6/30/00 E0570 $106.70 10 10/24/00 E0570 $106.70 14 02/15/00 E0570 $106.70 16 05/08/00 E0570 $106.70 23 06/09/00 E0570 $106.70 26 06/14/00 E0570 $106.70 The remaining overpayments claimed by AHCA concern the failure to document that the attending practitioner had ordered a program of exercise or an activity program for therapeutic purposes that required the use of a portable oxygen system. The Medicaid Provider Reimbursement Handbook provides, in part, that "Records must be retained for a period of at least five years from the date of service." The types of records that must be retained include "patient treatment plans" and "prescription records." The handbook goes on to provide in pertinent part: Medical records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the services rendered: * * * Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; * * * Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service. Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid Payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment. Petitioner, through its owners and operators, is of the view that it does not need to have the documentation on file, and it does not ask physicians for details about their prescriptions, "because that's something private from doctors and patient." Petitioner, by signing a Medicaid Provider agreement, agreed that all submissions for payment of claims for services will constitute a certification that the services were provided in accordance with local, state, and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medical Provider Handbooks issued by AHCA. Petitioner routinely obtained from Medicaid beneficiaries to whom it provides goods or services a written statement authorizing other healthcare provides to furnish any information needed to determine benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order requiring Petitioner to reimburse the Agency for Medicaid overpayments in the total amount of $27,473.27, plus such interest as may statutorily accrue. DONE AND ENTERED this 22nd day of September, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2003. COPIES FURNISHED: Tom Barnhart, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Lawrence R. Metsch, Esquire Metsch & Metsch, P.A. 1455 Northwest 14th Street Miami, Florida 33125 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for determination is whether Respondent was overpaid $312,773.67 for claims which, according to Petitioner, did not comply with Medicaid requirements.
Findings Of Fact Petitioner Agency for Health Care Administration ("AHCA") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). At all relevant times, Respondent has been a Home and Community Based (HCB) Medicaid provider that is authorized to receive reimbursement for covered services rendered to Medicaid recipients. Developmental Disability Home and Community Based Services Waiver Program The alleged overpayment in this case relates to services Respondent provided through the Medicaid Developmental Disability Home and Community Based Waiver Program ("the Program"). As explained during Ms. Olmstead's final hearing testimony, the Program was established to help developmentally- disabled individuals remain in their homes or home-like settings within the community, as opposed to institutions such as nursing homes or intermediate care facilities. Medicaid recipients that desire to receive services through the Program undergo an initial evaluation performed by a waiver support coordinator. The support coordinator is a Medicaid provider that is selected by the Medicaid recipient or his or her guardian. To determine the services needed by the recipient to remain in the home, the support coordinator assesses the recipient by conducting an in-home visit. Upon completion of this initial assessment, the support coordinator formulates a "support plan," a document which describes the recipient's personality, likes, dislikes, strengths, and weaknesses, as well as the recipient's existing support system, such as family, friends, and neighbors. In addition, the support plan details the services the recipient needs to stay in the home and identifies who will provide the services. The expected costs of the proposed services are described on a form titled "cost plan," which, combined with the support plan, comprise the plan of care for the recipient. The support coordinator is required to submit the plan of care, as detailed in the support plan and cost plan, to the Department of Children and Families ("DCF"). If the plan of care is approved, DCF staff will create a "service authorization form." This form, which the support coordinator forwards to the service provider, describes the services to be rendered, as well as the duration and frequency of each service. Without the service authorization form, a provider cannot be assured payment from Medicaid. At least one time per year, the support coordinator must assess the recipient's needs, complete updated support and cost plans, and submit the updated plans for approval. If the updated plan of care is approved, DCF will draft a new service authorization form, which is forwarded to the provider by the support coordinator, along with copy of pertinent support plan information. Should the recipient's services or support require modification, the support coordinator is required to update the cost report and submit it for approval. Communication between the support coordinator and providers such as Respondent is encouraged, as the support coordinator reviews with the provider the goals to be achieved for the recipient. A service provider is expected to assist in establishing support plan outcomes for a recipient's goals and participate in the personal outcome process. Moreover, a service provider expressly consents to such communication by virtue of the provider's contract with Medicaid, which includes an agreement to participate in discussions with the support coordinator on matters such as a recipient's progress, the extent to which a recipient's needs are being met, and modifications to the recipient's support plan. The Preliminary Audit and Final Audit Exercising its statutory authority to oversee the integrity of Medicaid, Petitioner conducted a review or audit of Respondent's records to verify that claims paid by Medicaid during the period from January 1, 2003, through December 31, 2004 (the "audit period"), were billed and paid in accordance with Medicaid statutes, rules, and policies. As the average number of claims per recipient during the audit period was substantial, Petitioner utilized "two stage cluster sampling." This first stage involved a random selection of 34 receipts for whom Respondent submitted claims during the audit period. Next, from those 34 recipients, a total of 255 claims was randomly selected. On October 7, 2005, AHCA requested that Respondent provide "the documentation for services paid by the Florida Medicaid Program" in connection with the 255 claims that comprised the random sample. On or about October 21, 2005, Respondent submitted 37 packages of documents in response to Petitioner's request. Respondent also executed an affidavit which alleged that the documents were true and correct copies, and that the records were made at or near the time that the services were rendered. The documents submitted by Respondent were initially examined by Ms. Effie Green, a program analyst employed by Petitioner. Ms. Green immediately noticed that the records from at least some of the packages were covered in dust with a crystal-like appearance. Law enforcement officers called to the scene ultimately determined that the substance was harmless. There is no evidence that any of the records were tampered with or removed from Petitioner's offices during the investigation. On the contrary, the evidence demonstrates that the documents remained in Ms. Green's office until the dust was analyzed. Following the events described above, the audit of Respondent's records was delayed for approximately one year while an appeal, which involved a different Medicaid provider, was completed. The appeal, which was resolved in AHCA's favor, concerned the validity of the statistical formula utilized in calculating probable Medicaid overpayments.4 The responsibility of reviewing the documents provided by Respondent was later transferred to Ms. Robin Satchell, an investigator employed by Petitioner in the Bureau of Program Integrity. Prior to her employment with AHCA, Ms. Satchell worked for eight years as an HCB Medicaid provider. Ms. Satchell fully reviewed the records previously submitted on October 20, 2005, and also examined additional records subsequently provided by Respondent to verify that the claims paid during the audit period were billed and paid in accordance with Medicaid statutes, rules, and policies. Rules applicable to the claims reviewed in this case are enumerated in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook, and include: Only those services that have been identified in a recipient's plan of care and which have been approved and authorized prior to delivery are covered. Providers are limited to the amount, duration, and scope of the services described on the recipient's support plan and current approved cost plan. Only those services that are medically necessary are covered. Services furnished through the developmental disability waiver program are deemed to be medically necessary only if certain elements are present, including but not limited to the following: the service is not in excess of the recipient's needs; and, the service is furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caregiver, or the provider. In order to receive payment for services, the provider must document the service appropriately. Documentation is a written record that supports the fact that a service has been rendered. Depending upon the particular service provided (e.g., Personal Care Assistance, Homemaker Services, Chore Services), the documentation requirements may vary and are detailed in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook. On May 24, 2007, AHCA issued a Final Agency Audit Report, which alleged that Respondent was overpaid $1,647,960.81 during the audit period for services that were not covered by Medicaid. Following the issuance of the Final Agency Audit Report, and as announced at the outset of the final hearing in his matter, Petitioner now alleges that Respondent was overpaid $312,773.26. The manner in which AHCA reached the alleged overpayment of $312,773.67 is as follows: of the 255 claims examined by Ms. Satchell, 197 were allowed.5 Ms. Satchell made downward adjustments to 52 claims, and 6 were denied outright. Based upon the adjustments and denials, Ms. Satchell concluded that Respondent had received $1,287.26 in reimbursement of claims in the sample for services not covered by Medicaid, either in whole or in part. Having discovered this "empirical overpayment" of $1,287.26, AHCA employed a statistical formula to ascertain the "probable total overpayment" that Respondent received from Medicaid in connection with the total number of claims made during the Audit Period.6 As noted above, Petitioner contends that the "probable total overpayment" is $312,773.67. In her Proposed Recommended Order, Respondent asserts that with respect to the entire sample of claims, only one instance of incorrect billing occurred. In particular, Respondent concedes that that services provided to Recipient number 24 on September 2, 2003, were inadvertently overbilled in the amount of $0.96. Respondent disputes the remaining 51 downward adjustments and six outright denials, which are discussed separately below by recipient.7 Recipient No. 1 The support plan for this recipient authorized Personal Care Assistance, which is described in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: service that assists a beneficiary with eating and meal preparation, bathing, dressing, personal hygiene, and activities of daily living. The service also includes activities such as assistance with meal preparation, bed marking and vacuuming when these activities are essential to the health and welfare of the beneficiary and when no one else is available to perform them . . . . Personal Care Assistance is limited to the amount, duration and scope of the services described in the beneficiaries [sic] support plan and current approved cost plan.[8] (Emphasis added). The support plan indicates that this recipient lived with his mother and three siblings, all but one of whom were capable of completing homemaker tasks. AHCA alleges that of the five claims examined during the audit, one is problematic. In particular, AHCA contends that six of the activities performed on November 12, 2004, constituted unauthorized homemaker tasks, and therefore overbilling occurred in the amount of $12.90. According to AHCA, the unauthorized activities included organizing clothes, cleaning the kitchen, washing dishes, cleaning tables, cleaning the living room, and washing laundry. The undersigned finds that four of the six activities were unauthorized homemaker tasks: organizing clothes, cleaning the living room, washing laundry, and cleaning tables. The undersigned cannot agree, however, that Respondent inappropriately billed for washing dishes and cleaning the kitchen. Notably, and as demonstrated by the service log, meal preparation was one of the services provided to the recipient on November 12, 2004. There is no allegation that meal preparation was unauthorized, and the various exhibits submitted by AHCA plainly reveal that the service was appropriate (i.e., meal preparation was not included in AHCA's list of unauthorized activities for that date). In the undersigned's judgment, if a service provider is authorized to cook a meal for a beneficiary, it necessarily follows that the provider be permitted, and indeed expected, to wash the dishes and clean the kitchen. The undersigned's conclusion that Respondent appropriately billed for cleaning the kitchen and washing dishes is supported by the notes made by Ms. Satchell in one of AHCA's exhibits. In particular, page 3 of Petitioner's Exhibit H indicates that with respect to the October 17, 2004, services provided to Recipient No. 6 (who likewise received Personal Care Assistance), one unit of service was deducted for cleaning the kitchen because there was "no meal prep that day." The obvious implication of this notation is that cleaning the kitchen would not have been considered improper if a meal had been prepared. As Respondent was authorized to prepare a meal for the recipient on November 12, 2004, Respondent properly billed for the services of washing the dishes and cleaning the kitchen. Accordingly, the $12.90 alleged overpayment should be adjusted, as only four unauthorized activities (organizing clothes, cleaning the living room, washing laundry, and cleaning tables) were billed. Recipient No. 3 The service authorization for Recipient No. 3 provided for four hours of Homemaker Services per week. The service authorization further indicated that the Homemaker Services were intended to achieve the support plan goal of providing "the beneficiary with [a] clean environment. General household activities, such meal [sic] preparation, vacuuming, and routine cleaning." It appears from the support plan that the Homemaker Services were authorized due to the poor health of the recipient's mother. Homemaker Services are defined in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: Homemaker services are those general household activities such as meal preparation, laundry, vacuuming and routine household cleaning provided by a trained homemaker, when the person who usually handles these tasks is unable to perform them. The intent of this service is to ensure that the beneficiary's home environment remains clean, safe, and sanitary. Homemaker services are provided only when there is no one else capable of accomplishing the household tasks . . . . * * * Homemaker services shall be provided in the beneficiary's own home or family home. This service is available in the family home only when there is documentation as to why the family cannot provide the support If approved, homemaker services will be limited to the beneficiary's primary living areas such as bedroom and bathroom. This includes the kitchen and a common area, if regularly utilized by the beneficiary. (Emphasis added). On December 11, 2004, Respondent provided four hours of Homemaker Services, which were billed in the amount of $59.20. AHCA concedes that nine of the services provided on December 11, 2004, were authorized and therefore appropriately billed: making the bed; changing the bed sheets; throwing garbage away; cleaning the room; organizing the room; organizing the clothes; cleaning the bathroom; changing the towels; organizing the bathroom; vacuuming; cleaning the rugs; and meal preparation. However, AHCA contends that ten other activities provided on December 11, 2004, were unauthorized: cleaning the kitchen; washing the dishes; cleaning the tables; cleaning / organizing the cabinets; cleaning the stove; cleaning the refrigerator; cleaning the living room; washing laundry; ironing; and cleaning windows. It is evident from Ms. Satchell's notes (in the "MPI worksheet") that she found these tasks unnecessary because they occurred "outside of recipient's bedroom / bathroom."9 As a consequence, Ms. Satchell concluded that Respondent was overpaid for one hour of services in the amount of $14.80 Once again, the undersigned cannot agree that Respondent inappropriately billed for cleaning the kitchen, washing dishes, and cleaning the stove. Cooking was permitted by the service authorization, and there is no allegation that Respondent should not have billed for the meal that was prepared for the recipient on December 11, 2004. If a provider is authorized to prepare a meal, it is only logical that he or she clean up afterward and bill for the time. Nor can the undersigned agree that Respondent should not have billed for cleaning the living room, tables, windows, and refrigerator. These four activities plainly fall within the services contemplated by the service authorization, which directed Respondent to provide "the beneficiary with [a] clean environment" and carry out "general household activities . . . such as routine cleaning." Moreover, these activities are comparable to "cleaning rugs," an activity performed on the same date that was not alleged to be improper. Although, as AHCA point out, these activities may have occurred outside of the recipient's bedroom and bathroom, that fact is not controlling, as the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook provides that Homemaker Services extend to "the kitchen and a common area, if regularly utilized by the beneficiary."10 The undersigned also finds that washing laundry was not an unauthorized activity, as it falls within the definition homemaker services. Further, in light of the recipient's incontinence, washing laundry is obviously essential to achieving the support plan goal of providing "the beneficiary with [a] clean environment." The undersigned does agree with AHCA that ironing and "cleaning / organizing cabinets" were unauthorized because these activities were not related to the support plan goals. Based on the findings herein that only two of the activities were unauthorized (ironing and "cleaning / organizing" cabinets), an adjustment should be made to the alleged overpayment of $14.80. Recipient No. 6 This recipient was authorized to receive six hours of Personal Care Assistance per day. Pursuant to the support plan, Respondent was authorized to provide bathing, dressing and eating assistance to the recipient. On October 17, 2004, Respondent provided six hours of services to the recipient, at a cost of $120.96. AHCA alleges, correctly, that one of the services provided on that date, cleaning the kitchen, was unauthorized because the service documentation provided by Respondent reflects that no meal was prepared. Accordingly, the undersigned finds that Respondent was overpaid $5.04. Although Respondent has suggested that cleaning the kitchen may have been necessary due to the recipient (who is incontinent) defecating on the kitchen floor, no documentation has been provided that would support such a finding. In the absence of appropriate documentation, AHCA appropriately found that an adjustment of one unit was required for the October 17, 2004, services. Respondent also provided six hours of services to the recipient on November 26, 2004, at a cost of $120.96. With respect to this date, AHCA contends, and the undersigned agrees, that overbilling for one unit in the amount of $5.04 occurred, as one of the activities performed, "organizing clothes," constituted an unauthorized homemaker service. For the reasons expressed above, AHCA demonstrated by a preponderance of the evidence overbilling totaling $10.08 with respect to this recipient. Recipient No. 7 This recipient was authorized to receive Personal Care Assistance. Significantly, the recipient's support plan clearly indicated that her mother prepared meals for her. The service logs indicate that Respondent provided four hours of services to the recipient on the following dates: September 4 and November 25, 2003, and February 10 and April 26, 2004. AHCA contends that on each of the four dates listed above, Respondent provided the unauthorized service of meal preparation, and as a result, Respondent was overpaid a total of $18.68. As the recipient's support plan clearly indicated that meals were prepared by a parent, AHCA has demonstrated an overpayment of $18.68 by a preponderance of the evidence. Recipient No. 8 Recipient No. 8 was authorized to receive Personal Care Assistance and Companion Services, both of which were provided by Respondent. AHCA alleges that of the eleven claims reviewed pursuant to the audit, two were problematic. Specifically, AHCA contends the service logs associated with the personal care assistance provided on October 26 and November 19, 2004, were obvious photocopies of Respondent's service log from March of 2004 for the same recipient. Accordingly, AHCA asserts that the records submitted by Respondent in connection with the October 26 and November 19 services were not contemporaneous and therefore inadequate. As no contemporaneous records document the services provided on October 26 and November 19, 2004, AHCA contends that Respondent was overpaid $275.20 ($137.60 for each of the dates). The undersigned has examined the service logs for October and November 2004 for this recipient and finds that they do not constitute contemporaneous records. As such, Respondent was overpaid in the amount alleged by AHCA. Recipient No. 9 This recipient was authorized to receive Homemaker Services. AHCA alleges, and the undersigned agrees, that of the five claims audited, two involved overpayments. In particular, Respondent's service log reveals that on April 29, 2003, the unauthorized activity of "shopping" was performed. As such, Respondent was overpaid in the amount of $3.70. Further, Respondent's service log indicates that on January 7, 2004, homemaker activities were provided from 9:00 a.m. through 11:00 a.m., which included shopping and meal preparation. As noted above, shopping is an unauthorized activity. In addition, the support plan indicates that the recipient's mother was responsible for preparing meals. Accordingly, an overpayment of $3.70 occurred with respect to this date of service. For these reasons, AHCA has demonstrated a total overpayment of $7.40 in connection with this recipient. Recipient No. 10 Recipient No. 10 was authorized to receive Companion Services, which, pursuant to the support plan, were intended to help the recipient "continue to be exposed to different options in the community." AHCA contends that two of the five claims examined during the audit are problematic. First, with respect to the July 29, 2003, claim, Respondent provided no documentation to support the $49.44 billed for the four hours of service. As such, AHCA correctly determined that Respondent was overpaid in that amount. In addition, AHCA properly found that Respondent was overpaid $3.70 in connection with the September 26, 2003, services. Specifically, the service log indicates that a meal was prepared, which is an activity unrelated to the specific goals identified in the support plan. Based on the above findings, Respondent was overpaid a total of $53.14 with respect to this recipient. Recipient No. 12 Recipient No. 12 was authorized to receive eight hours of Companion Services per week. Pursuant to the support plan and service authorization, the services were intended to help the recipient be "socially active in the community." The support plan further indicated that the recipient was able to "clean her room, clean the bathroom . . . wash dishes and help her mother with chores." AHCA correctly alleges that of the five claims examined, three involved overpayments. First, for the 32 units of service provided on December 28, 2003, Respondent was overpaid $3.70 because the service log indicates that dishwashing was provided. This was obviously inappropriate because, as noted above, the support plan expressly provided that the recipient was capable of washing dishes. Next, Respondent's service log indicates that dishwashing was performed for the recipient on April 24, 2004. As such, Respondent was overpaid $3.70. An overpayment of $3.70 was also proven in connection with the July 3, 2004, services, as the service log demonstrates that the unauthorized activities of dishwashing and "organizing the bathroom" were performed. For these reasons, AHCA appropriately determined that Respondent was overpaid in the total amount of $11.10 for the services provided to this recipient during the audit period. Recipient No. 17 This recipient was authorized to receive Personal Care Assistance and Homemaker Services. Of the twelve claims reviewed concerning this recipient, AHCA alleges that only the November 11, 2004, services are problematic. In particular, a review of the service logs demonstrates that seven activities billed as homemaker services for November 11, 2004, were also provided and billed as personal care assistance for the same date. Based upon this unauthorized duplication of services, AHCA has proven that an overpayment of $14.80 occurred. Recipient No. 18 This recipient was authorized to receive forty hours of Personal Care Assistance per week. According to the support plan, the recipient lived alone with her father (who worked full time) and had little contact with her mother, who lived "far away" and visited only occasionally on weekends. The support plan further provided that the personal care assistance was intended to provide assistance with "bathing, dressing, grooming, food preparation, feeding, and transportation to . . . therapy." AHCA determined, following a review of the service logs and other documentation, that Respondent was overpaid in connection with two of the seven claims reviewed during the audit. First, AHCA alleges that Respondent was overpaid $7.72 by performing unauthorized homemaker tasks on September 19, 2003, which included shopping, washing dishes (although no meal was prepared), and assisting with household activities that would not typically be completed by an eight-year-old child. The undersigned agrees that the activities identified by AHCA in connection with the services rendered on September 19, 2003, were unauthorized, and that Respondent was overpaid in the amount of $7.72. AHCA also contends that Respondent was overpaid $7.72 in connection with the services provided on February 27, 2004. Specifically, AHCA asserts that three of the activities (shopping, laundry, and washing dishes) were unauthorized homemaker tasks. It is critical to note that in contrast to the services provided on September 19, 2003, the provider prepared a meal (as authorized by the support plan) for the recipient on February 27, 2004. As such, and for the reasons expressed previously in this Recommended Order, dishwashing should not be deemed an unauthorized activity. However, the undersigned concludes that shopping and laundry, the other two questionable activities performed on February 27, 2004, were indeed unauthorized. In light of the undersigned's finding that meal preparation was not an unauthorized activity, AHCA should make an appropriate adjustment to the February 27, 2004, overpayment. Recipient No. 19 Of the eight claims examined for Recipient No. 19, who was authorized to receive Companion Services, AHCA found fault with only one. In particular, AHCA determined that of the $59.20 billed on November 26, 2004, Respondent was overpaid $3.70 by performing the unauthorized homemaker activity of "organizing bathroom." The undersigned agrees with AHCA's finding, as organizing the recipient's bathroom is a homemaker activity that does not fall within the ambit of companion services. As such, an overpayment of $3.70 occurred. Recipient No. 20 This recipient was authorized to receive twenty hours of Companion Services per week, which were typically provided in four hour blocks from 1:00 p.m. to 5:00 p.m. Companion Services are defined in the Florida Medicaid Developmental Services Waiver Services Coverage and Limitations Handbook as follows: Companion services consist of non-medical care, supervision, and socialization activities provided to an adult on a one-on- one basis. This service must be provided in direct relation to the achievement of the beneficiary's goals per his or her support plan. A companion provider may also assist the beneficiary with such tasks as meal preparation, laundry and shopping . . . . Providers may also perform light housekeeping tasks, incidental to the care and supervision of the beneficiary. (Emphasis added). Significantly, the support plan expressly provided that the recipient "receive[d] assistance from her companion in some house chores, like cleaning the kitchen and meal preparation to avoid risky situations in the kitchen." (Emphasis added). AHCA contends that overpayments occurred with respect to four of the five claims audited. First, AHCA alleges that with regard to the November 11, 2003, services, Respondent was overpaid $3.70 by performing the unauthorized activity of "light housekeeping." The undersigned cannot agree, as the support plan plainly allowed the provider to assist the recipient with "some house chores," which is indistinguishable from "light housekeeping." Further, and as noted above, companion services may include "light housekeeping tasks, incidental to the care and supervision of the beneficiary." The service log for November 11, 2003, demonstrates that supervision was provided to the recipient. Accordingly, Respondent did not overbill in the amount of $3.70 for this date of service. Next, AHCA contends that with respect to the services provided on December 10, 2003 (which included non-medical care, supervision, shopping, and "goals and support plan assistant"), one activity was unauthorized: meal preparation. As such, AHCA alleges that an overpayment of $3.70 occurred. The undersigned concludes, based on the unambiguous language of the support plan, that meal preparation was authorized. As detailed above, the recipient "receive[d] assistance from her companion in some house chores, like cleaning the kitchen and meal preparation to avoid risky situations in the kitchen." (Emphasis added). Accordingly, an overpayment of $3.70 did not occur with respect to the December 10, 2003, services. Turning to the services provided on May 6, 2004, AHCA contends that the unauthorized activity of washing laundry resulted in an overbilling of $3.70. As referenced in the definition of companion services previously quoted, laundry may only be performed "in direct relation to the achievement of the beneficiary's goals per his or her support plan." In this instance, the documentation submitted by Respondent fails to make such a showing. As a result, AHCA correctly found that $3.70 was overbilled for this date. Finally, with respect to the May 12, 2004, services, AHCA alleges that Respondent was overpaid $3.70 for the unauthorized activity of "dishwashing." The undersigned does not agree that dishwashing was unauthorized, since the support plan contemplated that the recipient would receive assistance from a "companion in some house chores, like cleaning the kitchen." As washing dishes is integral to the process of cleaning a kitchen, Respondent was not overpaid in connection with this date of service. Based on the above findings, the total overbilling for this recipient was $3.70, which related to the May 6, 2004, services. Respondent was not overpaid in connection with the services provided on November 11 and December 10, 2003, and May 12, 2004. Recipient No. 21 This recipient was authorized to receive 20 hours of Personal Care Assistance per week, which was typically provided from 2:00 p.m. through 6:00 p.m. The support plan for this recipient, who is incontinent, reads in relevant part as follows: Food requires modification. Food needs to be blend [sic] or puree [sic] at all times to avoid choking . . . . [Recipient] arrives home around 2:00 p.m. Personal Care service changes her diaper. Then she prepares her a snack. She is [sic] assists with eating. AHCA contends that Respondent was overpaid in connection with three of the four dates of service examined during the audit. First, with respect to the services provided on April 14, 2004, AHCA asserts that two unauthorized activities were performed (organizing clothes and performing a massage), which resulted in overbilling of $3.86. Having reviewed the support plan carefully, the undersigned agrees that these activities were unauthorized and that an overpayment occurred in the amount alleged. Turning to the services provided on October 14, 2004, AHCA alleges that five unauthorized activities (providing a massage, washing dishes, changing sheets, organizing the bathroom, and cleaning a table) resulted in overbilling of $11.58. The undersigned concurs with AHCA's assertion that the activities of "massage," change sheets, organize bathroom, and clean table were unauthorized. However, overbilling did not occur for washing dishes, as the service log reveals that a meal was prepared for the recipient on October 14, 2004, an activity that was expressly authorized by the support plan. As meal preparation was permitted, washing the dishes constituted a permissible activity. In light of the above findings, AHCA should make an appropriate adjustment to the overpayment associated with the October 14, 2004, services. Finally, AHCA contends that with regard to the December 24, 2004, services, Respondent was overpaid $7.72 by providing four unauthorized activities: performing a massage, making the bed, changing towels, and cleaning the living room. The undersigned agrees that these activities were not approved and that an overpayment occurred in the amount alleged. Recipient No. 23 Recipient No. 23 was authorized to receive Personal Care Assistance, which was typically provided multiple times each week for eight hours. AHCA contends that Respondent was overpaid in connection with eight of the nine claims examined during the audit. Six of the claims involve identical issues. In particular, with respect to the services provided on August 29, 2003, and February 2, February 17, April 5, May 28, and September 13, 2004, AHCA asserts that the unauthorized activities of "make bed, meal prep, [and] clean table" resulted in overbilling totaling $60.48 (i.e., $10.08 for each of the six dates). As it appears from a review of the support plan that the recipient's mother was able to complete these activities, the undersigned agrees that overbilling occurred in the amount alleged. AHCA also alleges, and has demonstrated by a preponderance of the evidence, that $10.08 was overbilled in connection with the services provided on August 8, 2003. In particular, the activities of "played outside, played with castle set, and lunch" are beyond the scope of the services contemplated by the support plan. Finally, AHCA has met its burden with respect to the alleged $5.04 in overbilling associated with the September 10, 2003, services, as "went to pool" and "watered deck flowers before dinner" plainly constitute unauthorized activities. Recipient No. 24 As noted previously, Respondent concedes that an overpayment of $0.96 occurred with respect to this recipient. Recipient No. 25 Recipient No. 25 was authorized to receive 16 hours of Companion Services each week to assist with socialization and supervision. Of the six claims examined during the audit, AHCA contends that two are problematic. First, with regard to the services provided on January 29, 2003, AHCA contends that the entire billing for that date ($24.72) should be denied due to inadequate documentation. In particular, AHCA notes that the service log provided during the preliminary audit and final audit was different than a log submitted by Respondent in April of 2009. Further, the earlier log is vague (it merely indicates "assist household, escort activities, other") and fails to address any specific support plan activities. AHCA also points out that the later log was incomplete and failed to indicate the date of the activities. AHCA has demonstrated by a preponderance of the evidence that the services provided on January 29, 2003, were not adequately documented, and therefore Respondent was overpaid in the amount of $24.72. Next, AHCA alleges that the services provided on March 25, 2004, were not adequately documented, and therefore the entire billing of $44.40 should be denied for that date. Specifically, AHCA points out that the service log only reads "supervision" and "escort activities" and failed to address any of the activities enumerated in the support plan. Although a later service log was submitted, it was incomplete, vague, and failed to delineate which activities were performed on March 25, 2004, as opposed to the other nine dates of service during that month. For the reasons detailed above, AHCA demonstrated by a preponderance of the evidence that the March 25, 2004, services were not properly documented, and therefore the $44.40 payment should be denied. Recipient No. 26 AHCA contends that of the nine claims examined during the audit concerning this recipient, one should be fully denied due to the lack of proper documentation. Specifically, AHCA alleges that the $74.00 payment for the services rendered on May 31, 2004, should be denied outright, as the service log for May of 2004 was created by photocopying the service log for the previous month and changing the date. The undersigned has examined the documents11 and concludes that the May 2004 service log was not contemporaneously prepared. As a result, AHCA has demonstrated by a preponderance of the evidence that the $74.00 payment associated with the May 31, 2004, services should be denied. Recipient No. 28 This recipient was authorized to receive Personal Care Assistance to address daily needs such as grooming and dressing. Significantly, the support plan also indicates that meal preparation was authorized. AHCA contends that with respect to the services provided on May 15, 2003, four unauthorized homemaker activities were performed: cleaning the bathroom, washing laundry, cleaning the kitchen, and washing dishes. As a result, AHCA alleges an overpayment of $12.00, which represents four units of service. AHCA has demonstrated by a preponderance of the evidence that cleaning the bathroom and washing laundry were unauthorized. However, AHCA has failed to prove that dishwashing and cleaning the kitchen were unauthorized, as the provider prepared a meal (as indicated by the service log) for the recipient on May 15, 2003, an activity that was authorized by the support plan. As explained previously in this Recommended Order, if a provider is authorized to prepare a meal, then it is entirely reasonable for the provider to wash the dishes and clean the kitchen afterward. This is particularly true with respect to this recipient, who lived alone with her stepfather (who, according to the support plan, worked "intensive hours"), and was incapable of performing basic tasks (e.g., grooming and dressing) without assistance. Accordingly, AHCA should make an appropriate adjustment to the alleged $12.00 overpayment based on the above findings that cleaning the kitchen and washing dishes were not unauthorized. Recipient No. 29 Recipient No. 29 was authorized to receive Personal Care Assistance in the amount of two hours each weekday and five hours on weekends. Pursuant to the support plan, the recipient required assistance with basic activities such as dressing, bathing, brushing teeth, and preparing meals. AHCA contends that overbilling occurred with respect to four of the eight dates of service examined during the audit. First, AHCA alleges, and has demonstrated by a preponderance of the evidence that $10.08 was overbilled for the October 6, 2004, services, as the following unauthorized homemaker activities were performed: cleaning the recipient's room, cleaning the bathroom, organizing the room, organizing the bathroom, and changing towels. In addition, AHCA has proven an overpayment of $10.08 in connection with the November 24, 2004, services, where the service log demonstrates that unauthorized homemaker activities (identical to the services identified in the previous paragraph) were performed on that date. With regard to the services rendered on December 14, 2004, AHCA has demonstrated overbilling of $10.08 for the unauthorized homemaker services of cleaning the room and changing towels. Finally, AHCA alleges, and has demonstrated by a preponderance of the evidence, a $5.04 overpayment in connection with the December 29, 2004, services. In particular, the service logs demonstrate that the unauthorized homemaker activities of vacuuming, organizing the bathroom, and taking out garbage were performed. Recipient No. 31 This recipient was authorized to receive Personal Care Assistance, which was provided eight hours per day, Monday through Friday, and ten hours on both Saturday and Sunday. As the recipient is a quadriplegic, personal care assistance was obviously necessary for feeding and maintaining personal hygiene. Of the nine claims examined during the audit concerning this recipient, AHCA alleges that overbilling occurred with respect to two. First, with regard to the October 27, 2003, services, AHCA contends that insufficient documentation was provided by Respondent to support ten hours of billing. In particular, AHCA asserts that "ate well" is the only activity described in the contemporaneous service log.12 As a result, AHCA argues that one hour of billing should be permitted for meal prep, and that the remaining billing in the amount of $181.44 should be disallowed. Contrary to AHCA's contention, "ate well" is not the only event described in the contemporaneous service log. Significantly, the log also reads, "Incontinent B & B." Given the recipient's physical condition, this notation obviously means that the service provider was required to address at least one episode of bladder and bowel incontinence during the ten hours of service. As such, billing should be permitted for toileting. Based on the above finding that services were documented for toileting, AHCA should make an appropriate adjustment to the October 27, 2003, overpayment. Next, AHCA contends that that due to inadequate documentation, overbilling of $161.28 occurred with regard to the ten hours of services provided on February 16, 2004. In particular, AHCA contends that the documentation submitted by Respondent supports only two hours of billing, as bathing was the only activity described in the contemporaneous service log. Once again, however, the contemporaneous service log also indicates that the service provider was required to address the recipient's bladder and bowel incontinence. Accordingly, additional billing should be permitted for toileting, and AHCA should make an appropriate adjustment to the February 16, 2004, overpayment. Recipient No. 32 Recipient No. 32 was authorized to receive Personal Care Assistance and Companion Services. AHCA contends that Respondent was overpaid in connection with eight of the fifteen claims examined pursuant to the audit. With respect to the services provided on March 21 and 23, 2003, AHCA has demonstrated by a preponderance of the evidence that Respondent was overpaid $61.80 in connection with each of the two dates (totaling $123.60) where the documentation does not support the units of service billed. Next, AHCA contends, and the undersigned agrees, that Respondent inappropriately billed for recreational activities in connection with the personal care assistance services provided on August 13, 2003, and December 1, 2003. As a result, $3.86 was overbilled for each date, for a total of $7.72. AHCA also alleges, and has demonstrated by a preponderance of the evidence, that unauthorized homemaker activities were billed in connection with the companion services rendered on October 7 and 11, 2003, and December 2, 2003, which resulted in overbilling of $11.10, $11.10, and $7.40, respectively. In particular, the service logs indicate that meal prep, laundry, and housekeeping were performed on October 7 and 11, 2003, and that laundry and housekeeping were provided on December 2, 2003. Finally, AHCA has proven an overpayment of $15.44 with respect to the personal care assistance services provided on March 25, 2004. Specifically, the service log indicates that the service provider "walked the dog" and "checked live bait," tasks which do not fall within the scope of personal care assistance. Based on the above findings, AHCA demonstrated a total overpayment of $176.36 with respect to this recipient. Recipient No. 33 This recipient was authorized to receive three hours per week of Companion Services, which were intended to "increase awareness of community resources and increase community integration skills." AHCA alleges that Respondent was overpaid in connection with one of the two claims examined during the audit. Specifically, with respect to the services provided on July 15, 2003, the only activities described in the service log are "shopping" and "exercise." AHCA contends, and the undersigned agrees, that neither shopping nor exercise constitute goal oriented activities in under the circumstances of this recipient. Accordingly, AHCA has demonstrated an overpayment of $15.44, which represents one hour of billing. Recipient No. 34 This recipient was authorized to receive Personal Care Assistance. Pursuant to the support plan, the recipient lived with her able-bodied mother and older brother. Of the five claims examined during the audit, AHCA contends that Respondent was overpaid with respect to two. First, AHCA alleges that $5.29 was overpaid in connection with the August 4, 2004, services, where the service log suggested that the provider took the recipient to the park. The undersigned has examined the monthly summary, and agrees with AHCA's assessment of the documentation. Accordingly, AHCA has demonstrated an overpayment in the amount alleged. Turning to the services provided on December 9, 2004, AHCA has demonstrated an overpayment of $5.29 by a preponderance of the evidence, as "cleaning the living room" is an activity that could have been performed by the recipient's mother.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that AHCA: Make appropriate adjustments to the empirical overpayment; Recalculate the probable total overpayment using the adjusted empirical overpayment and the statistical formula previously employed, and enter a final order requiring Respondent to repay AHCA the amount determined through such recalculation; The final order should further require Respondent to pay interest at the rate of 10 percent per annum on the recalculated total overpayment. DONE AND ENTERED this 23rd day of November, 2010, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 23rd day of November, 2010.
The Issue Whether Respondent is liable for overpayment of Medicaid claims, for the period of January 1, 2004, through January 1, 2006, as stated in Petitioner’s Final Audit Report (FAR), dated July 19, 2006, due to Respondent’s failure to properly document for services billed and collected, in violation of Section 409.913, Florida Statutes (2006),1 and, if so, in what amount.
Findings Of Fact Petitioner is the single state agency under federal law, charged with administration of the Medicaid Program in Florida, and is charged with recovering overpayments to providers. Petitioner’s Bureau of Medicaid Integrity (MPI) has the primary responsibility to audit medical service providers who participate in the Medicaid program. MPI is a Bureau under the AHCA Inspector General. MPI conducts audits to review provider’s compliance with applicable statutes, rules, and policies regarding billing Medicaid for services rendered. An MPI audit is separate and distinct from an annual or other licensure survey or inspection conducted by Petitioner. The MPI audit is a compliance audit not a licensure one. MPI is mandated to review for provider fraud and abuse to ensure that the recipients are receiving the service for which Medicaid is paying. Respondent is a Florida licensed Advanced Registered Nurse Practitioner (ARNP) and provided medical services, including psychological counseling to Medicaid recipients, pursuant to a contract with Petitioner under her Provider number 302123800. Respondent participated in the Medicaid program at least from July 1, 2001, and continuously through December 31, 2005 (end of the Audit Period). Petitioner was paid for the services rendered. The audit period for Respondent was determined to be from January 1, 2004, through December 31, 2005. Claims for services were reviewed for a standard two-year audit period, and were audited for coding, records and visits. Thirty recipients were picked as a sample of recipients to examine during the two-year audit period. The selection was random and computer generated. Respondent was notified that Petitioner was conducting an audit. Respondent provided the charts on the 30 recipients to be examined and each of their claims during the audit period, which comprised all of her medical records. Gary Mosier is a Registered Nurse (RN), and holds a master’s degree in health care administration. Mosier is employed by the AHCA Inspector General, MPI, and is a nurse consultant and investigator. He was lead analyst and investigator in this matter. James Edgar, M.D., a psychiatrist with 35 years of experience, was retained by Petitioner as a peer review expert to review the charts and give a coding opinion. Billing codes are five-digit numbers. There are general guidelines for establishing the degree of difficulty which are set forth in documents such as Documentation Guidelines for Evaluation and Management Services, published by the American Medical Association. However, the correct coding can only be established through expert testimony, which is based upon established and identified criteria. With respect to each of the services reviewed, Petitioner relied upon the opinion of its expert, Dr. Edgar, as to whether or not Respondent billed Medicaid correctly. Dr. Edgar based his opinion on a review of documents regarding each service which were provided to him by Petitioner. In each instance where the Billing Code 90807, Individual Psychotherapy, Insight Orientation, appeared on Respondents charts for all 30 patients, Dr. Edgar down-coded the charts to Code 90862, medical management. He did not disallow payment, he adjusted each of them. His opinion was that, without the time spent with the patient being delineated on the medical chart, then the visit must be down-coded, or it could be denied completely. Dr. Edgar’s testimony was credible and persuasive. A Preliminary Audit Report (PAR) was sent to Respondent on September 12, 2006. The PAR informed Respondent of an alleged overpayment and explained her options prior to the completion of a FAR. It also put Respondent on notice of possible sanctions for lack of response to Petitioner. AHCA pays for mental health counseling when the face- to-face time spent with the recipient is documented. The medical records resulting from these services are required by law to be maintained for five years following the dates of service. These records must be made available when requested by Petitioner. Respondent was requested to produce office appointment sheets or calendars in order to document her face-to-face time with patients. Respondent sent non-contemporaneous time listings, rather than chart materials or office materials to verify and document time spent. There existed no charted or office records of the time spent with patients. Although Respondent testified that these time listings were implied because of the code that she submitted to Petitioner, this testimony is not persuasive in proving a material fact in dispute. The FAR was sent to Respondent on November 7, 2006, with the spreadsheet attachment. As with the PAR, it informed Respondent of the issues involved with the audit and the overpayment calculations and sought to levy a sanction, if one applied. There was no documentation in the charts of the time expended in the patient encounter, as required under the law. Although Petitioner agreed that the use of the Code 90807 implied that there was one hour of face-to-face contact with a patient, CPT policy requires both medication management and therapy, not just medication management. There was no time of service, time spent, and no start or stop times noted in the medical records. These notations are specifically required under Medicaid policy. A record must reflect the time spent face-to-face with a patient. The final overpayment calculation and final audit reports document that the overpayment to be recouped, and which Petitioner seeks, is $12,500.70, with an added sanction of $1,500.00. The preponderance of evidence has shown that Respondent was overpaid in the amount of $12,500.70, and that Petitioner is authorized to impose a penalty of $1,500.00.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order instructing Respondent to repay the sum of $12,500.70, and imposing a fine if appropriate. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2010.
The Issue The issues are whether Petitioner has overpaid Respondent $9713.34 in reimbursed claims for home health visit services. If so, additional issues are whether Petitioner is entitled to impose a fine of $1942.67 and assess costs of $254.70.
Findings Of Fact Respondent has been a Medicaid provider since 2005, and the record discloses no prior violations of Medicaid law. Respondent provides home health visit services to Medicaid recipients in their homes, which may be group homes or private homes. The five recipients at issue in this case reside in private homes. As identified in the FAR, the recipients are M. O., who is Recipient 1; A. del. P., who is Recipient 2; J. R., who is Recipient 3; N. M. de O., who is Recipient 4; and B. C. C., who is Recipient 5. (The Preliminary Audit Report dated November 8, 2011 (PAR), identifies these recipients by the numbers, respectively, of 1, 4, 7, 9, and 10, but this recommended order will refer to the recipients by the numbers assigned to them in the FAR.) Respondent stipulates that the Florida Medicaid Home Health Services Coverage and Limitations Handbooks applicable to the years in question authorize a full reimbursement for home health visit services provided to a single recipient at a specific address and a reduced reimbursement of one-half for home health visit services provided on the same date to subsequent recipients at the same address. This provision, which has been in Medicaid handbooks for about ten years, occurs on page 3-2 in Petitioner Exhibit 5. As for the dates of service at issue in this case, Respondent concedes that, at the time of receiving home health visit services, Recipients 1-4 each resided with another recipient, who also received home health visit services from Respondent on the same dates. Respondent concedes that it has received full reimbursements for the services that it provided to these coresident recipients. Respondent contends that it is entitled to full reimbursements for the services that it provided to Recipients 1-4 because Petitioner's Medicaid billing program did not allow Respondent to enter the necessary information to halve these reimbursements. Respondent contends that Recipient 5 did not reside with another recipient receiving home health visit services from Respondent for any date of service occurring from May 6, 2009, through September 1, 2009. Alternatively, Respondent would contend that, if this contention failed to prevail, it is entitled to a full reimbursement for Recipient 5 on the same ground as it is for Recipients 1-4. There is no merit to Respondent's contention as to Recipients 1-4. First, reimbursement rates are set by the home health services coverage and limitations handbooks, not a Medicaid billing program maintained by Petitioner for use by providers. Second, Petitioner has proved that Respondent could have entered on its submitted claims halved reimbursement amounts for Recipients 1-4. Third, Petitioner gave Respondent a chance to correct its claims for Recipients 1-4 without any penalty. The Amended Preliminary Audit Report dated October 31, 2012 (APAR), which reduced the claimed overpayment to $9713.34, provides: "If the identified overpayment is paid within 15 days of receipt of this letter, amnesty will be granted in regard to the application of sanctions and the assessment of costs for this audit." As one of Petitioner's witnesses testified, all Respondent had to do within 15 days was to contact Petitioner and arrange for a repayment schedule. But Respondent did not avail itself of this opportunity, clinging instead to its argument that some flaw in the online billing program entitles Respondent to full reimbursements for all coresidents to whom it provided home health visit services. Assuming, strictly for the sake of discussion, that something was wrong with the online billing program, the amnesty offer constitutes the repair of the program and the restoration of Respondent to the point of submission (or resubmission) of the subject reimbursement claims. By not accepting the offer, Respondent essentially refuses to use the repaired program and unreasonably repeats its demand that it be relieved from a longstanding limitation on Medicaid reimbursement of home health visit services. As for Recipient 5, the dispute is whether this recipient coresided with another recipient receiving home health visit services from Respondent. The PAR found a problem with four recipients, including Recipient 5, but, after examining documentation provided by Respondent, Petitioner dropped the overpayment claims arising out of the other three recipients, but not Recipient 5. Relying on information contained in the Florida Medicaid database, which is known as FLMMIS, Petitioner determined that Recipient 5 coresided with another recipient. Although each recipient is required to provide updated residential information when appropriate, it is possible that Recipient 5 may not have timely done so. For its part, though, Respondent did not have documentation showing where the home health visit services were provided. Respondent instead relied on Recipient 5's Plan of Care, which is typically completed by the physician and presumably focuses more on the treatment plan than the recipient's place of residence. The record does not reveal the date of the Plan of Care on which Respondent relied, nor how often these plans are updated. Petitioner's staff tried to verify the address in Recipient 5's Plan of Care, but were unable to do so. On these facts, the addresses on FLMMIS control. It is unclear what role a recipient's address plays in a plan of care, but a recipient's address in FLMMIS is crucial because it is used to establish and maintain the recipient's Medicaid eligibility. A service log contemporaneously documenting the location that a provider visited to provide home health visit services probably would have sufficed to overcome the evidentiary force of the FLMMIS and FAR, which, as noted below, is evidence of the overpayment, but a mere plan of care cannot overcome this evidence. Having determined that Petitioner has proved that Recipient 5 coresided with another recipient of home health visit services from Respondent on the dates in question, Respondent's alternative argument, which is the billing argument that it used for Recipients 1-4, is rejected on the same grounds. Lastly, Petitioner has proved all factual grounds for imposing a fine of $1942.67 and assessing investigative costs of $254.70.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a total overpayment of $9713.34, imposing a fine of $1942.67, and assessing costs of $254.70. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 September, 2013. COPIES FURNISHED: Enrique F. Vazquezbello Amer-Cu Home Care, Inc. Suite 210 3271 Northwest 7th Street Miami, Florida 33125 Jeffries H. Duvall, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308
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 a l ah, of fiderd , 2012, in Tallahassee, Leon County, Florida. 4% ‘ CA kh fo ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed June 26, 2012 2:18 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jeffries H. Duvall Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) CYNTHIA A. MIKOS, ESQ. Allen Dell, P.A. 202 S. Rome Ave. - Suite 100 Tampa, FL 33606 cmikos@allendell.com (Electronic Mail) J.D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) 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 ZS" day of c JA » 2012. Richard Shoop, Esquire 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 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 11-5089MPI CI. NO. 11-1553-000 HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (‘AHCA” or “the Agency”), and Hillsborough Association for Retarded Citizens, Inc. (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The two parties enter into this agreement to memorialize the resolution of this matter. 2. PROVIDER is a Florida Medicaid provider, provider number 024102498 and was a provider during the audit period, January 1, 2009 to December 31, 2009. 3. In its Final Agency Audit Report (constituting final agency action) dated September 2, 2011, AHCA notified PROVIDER that review of Medicaid claims by the Division of Medicaid, Office of the Deputy Secretary, and Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $34,317.55. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 11-5089MPI. Hillsborough Association for Retarded Citizens, Inc. C.l. 11-1553-000 - Settlement Agreement 4. Subsequent to the original audit, 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 $27,078.51, plus $5,415.70 in fines and $674.38 in costs for a total due of $33,168.59. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA 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 twenty-seven thousand seventy eight dollars and fifty-one cents ($27,078.51) on the indebtedness, five thousand four hundred fifteen dollars and seventy cents ($5,415.70) in fines, plus six hundred seventy four dollars and thirty-eight cents ($674.38) in investigative costs for a total of thirty three thousand one hundred sixty eight dollars and fifty- nine cents ($33,168.59). PROVIDER will make an initial payment of eight thousand dollars ($8,000) and the remaining balance to be paid in 6 equal monthly installments. 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 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 6. (DOAH Case No. 11-5089MPI). 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. 11-5089MPI). 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. 11-1553-000. (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. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.I. 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 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 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, $674.38 in Agency costs and $5,415.70 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. Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 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 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. Hillsborough Association for Retarded Citizens, Inc. C.|. 11-1553-000 - Settlement Agreement 20. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. ROUGH ASSOCIATION FOR RETARDED CITIZENS, INC. Dated: “A727 L ZZ 2012 py. UO CW “CCL FECL (Print name) ITS: SP OPC B22 20 Revi OLN 7 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308-5403 ‘ Dated: G/al 2012 Miller Inspector General Dated: bl f .2012 William H. Roberts Dated: Z f_,2012
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)
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this G05 day of Wark . 2014, in Tallahassee, Florida. : Aa Lhe 7 Agency for Health Care Administration Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. C.1. No.: 13-0812-000; Case No.: 13-1571MPI Final Order Page 1 of 3 Filed March 27, 2014 4:51 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Karl D. Acuff, Esquire 1615 Village Square Boulevard, Suite 2 Tallahassee, Florida 32309-2770 Telephone: (850) 671-2644 Fax: (850) 671-2732 Email: kd_acuff@floridacourts.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Via Electronic Mail) Agency for Health Care Administration Bureau of Financial Services 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Via Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Via Electronic Mail) Richard Zenuch, Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Via Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 3, Mail Station 4 Tallahassee, Florida 32308 (Via Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via Electronic Mail) Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. C.1. No.: 13-0812-000; Case No.: 13-1571MPI CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to ——— the above named addressees by Electronic Mail, or the method designated, on this th day of J tore , 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building 43 Tallahassee, Florida 32308-5403 (850) 412-3630 Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. C.1, No.: 13-0812-000; Case No.: 13-1571MPI Final Order Page 3 of 3 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Case No.: 13-1571MP1 vs. CL. No.: 13-0812-000 Provider No.: 087570800 License No.: 5005096 NPI No.: 1144328881 GULFSIDE REGIONAL HOSPICE, INC., Respondent. / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency” or “Petitioner), and Respondent, GULFSIDE REGIONAL HOSPICE, INC., (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 087570800, and was a provider during the audit period. 3. In its Final Audit Report, dated March 18, 2013, the Agency notified PROVIDER that a review of Medicaid claims performed by Medicaid Program Integrity (“MPI”), Office of the AHCA Inspector General, during the period of January 1, 2008, through December 31, 2011, indicated that certain claims, in whole or in part, were inappropriately paid by Medicaid. The Agency for Health Care Administration v, Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 1 of 7 Agency sought repayment of this overpayment, in the amount of forty-four thousand, eight hundred seventy dollars and thirty-five cents ($44,870.35). Additionally, the Agency applied sanctions in accordance with Sections 409.913(15), (16), and (17) Florida Statutes, and Rule 59G-9.070(7)(e) Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of eight thousand, nine hundred seventy- four dollars and seven cents ($8,974.07) and costs in the amount of fifty-four dollars and sixteen cents ($54.16). The total amount due was fifty-three thousand, eight hundred ninety-eight dollars and fifty-eight cents ($53,898.58). 4. In response to the audit report dated March 18, 2013, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to the original audit that took place in this matter, the Agency agreed to relinquish the fine. The overpayment remains in the amount of forty-four thousand, eight hundred seventy dollars and thirty-five cents ($44,870.35). Additionally, the Agency assessed the following against the PROVIDER: costs in the amount of fifty-four dollars and sixteen cents ($54.16) pursuant to Section 409.913(23)(a), Florida Statutes. The total amount due is forty-four thousand, nine hundred twenty-four dollars and fifty-one cents ($44,924.51). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA agree as follows: (1) | AHCA agrees to accept the payment set forth herein in settlement of the overpayment, fine, and costs arising from the above-referenced audit. Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 2 of 7 (2) Within thirty (30) days from the date of the execution of a Final Order adopting this Settlement Agreement, PROVIDER agrees to pay the Agency the sum of forty-four thousand, nine hundred twenty-four dollars and fifty-one cents ($44,924.51). (3) The amount due will be offset by any amount already received by the Agency in this matter. (4) | PROVIDER and AHCA agree that such payment as set forth above will resolve and settle this case completely and release both parties from all liabilities arising from the findings relating to the claims determined to have been overpaid in the audit referenced as C.1. Number 13-0812-000. (5) 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. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable 2727 Mahan Drive M.S. #14 Tallahassee, Florida 32308-5403 7. Payment shall clearly indicate it is pursuant to a settlement agreement and shall reference the audit number. 8. Overpayments owed to the Agency bear interest at the rate of 10 percent per year from the date of determination of the overpayment by the Agency; and payment arrangements must be made at the conclusion of legal proceedings, pursuant to Section 409.913(25)(c), Florida Statutes. Agency for Health Care Administration v. Gulfside Regional Hospice, inc. (C1. No.: 13-0812-000) Settlement Agreement Page 3 of 7 9. 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. 10. | 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. 11. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 12. 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. 13. This Settlement Agreement shall be construed in accordance with the provisions of the laws of Florida. 14. Venue for any action arising from this Settlement Agreement shall be in Leon County, Florida. 15. 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 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. 16. 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 Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.I. No: 13-0812-000) Settlement Agreement Page 4 of 7 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. 17, | 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. 18. | PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter, AHCA’s actions herein, including, but not limited 10, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. 19. | 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. 20. 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. 21. This Agreement shall inure to the benefit of and be binding on cach party’s successors, assigns, heirs, administrators, representatives and trustees. Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 5 of 7 22. All times stated herein are of the essence of this Agreement. 23. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. 24. The parties agree to bear their own attorney’s fees and costs, if any. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK. Agency for Health Care Administration v. Gulfside Regional Hospice, Inc. (C.L No.: 13-0812-000) Settlement Agreement Page 6 of 7 GULFSIDE REGIONAL HOSPICE, INC. Yemf ¢ § Provider’s Representative KZ Couns. rovider STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 tuakt Williams General Counsel Kron Ow Kim Kellum Chief Medicaid Counsel ws ater bh: A aden Tracie L. Hardin Assistant General Counsel Dated: U/r ¥ , 2014 Dated: 2; 28 214 Dated: 2014 Dated: Ss 20 , 2014 F Dated: , 2014 Dated: ,2014 i Agency for Health Care Administration y. Gulfside Regional Hospice, Inc. (C.1. No.: 13-0812-000) Settlement Agreement Page 7 of 7 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RICK SCOTT a ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians SECRETARY FEDERAL EXPRESS MAIL No.: 8027 0367 2785 March 18, 2013 Provider No: 087570800 NPINo: 1144328881 License No.: 5005096 GULFSIDE REGIONAL HOSPICE, INC. 6117 TROUBLE CREEK RD NEW PORT RICHEY, FL 34653-5240 In Reply Refer to FINAL AUDIT REPORT C.I.No.: 13-0812-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period January 1, 2008 through December 31, 2011. A preliminary audit report dated January 18, 2013 was sent to you indicating that we had determined you were overpaid $44,870.35. Since no documentation was produced to refute these billings, all the claims are considered overpayments. We have determined that you were overpaid $44,870.35 for services that in whole or in part are not covered by Medicaid. A fine of $8,974.07 has been applied. The cost assessed for this audit is $54.16. The total amount due is $53,898.58. 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 $8,974.07 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.myfiorida.com Nursing Home Diversion Waiver — Fee for Service Match Page 2 The Medicaid program is authorized by Title XIX of the Social Security Act and Title 42 of the Code of Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter 59G, F.A.C. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks (in accordance with Chapter 59G, F.A.C.), billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) A Medicaid Provider is required to comply with Medicaid policy requirements (e.g. laws, rules, regulations, handbooks, policy). These requirements include, but are not limited to, providing goods and services in accordance with provisions of Medicaid policy and retaining medical, financial, and business records pertaining to the goods and services furnished. This review included a review of your claims reimbursed to you by Medicaid for goods and services to determine compliance with Medicaid policy. Payments for goods or services that are not documented and/or not billed in accordance to Medicaid policy are deemed to be overpayments. Our review has determined that you have failed to comply with Medicaid policy as outlined below. e Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid Nursing Home Diversion Waiver Program. Medicaid providers are required to verify Medicaid recipient eligibility prior to rendering Medicaid services. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient’s Nursing Home Diversion Waiver Provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check the total amount reflected on page one, paragraph one, of this letter which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Nursing Home Diversion Waiver — Fee for Service Match Page 3 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. 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. If a request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Sheri Creel, Auditor, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. Sincerely, Pamela Fante Program Administrator Office of Inspector General Medicaid Program Integrity PF/SC/SG Enclosure(s) Copies furnished to: Finance & Accounting Health Quality Assurance (Interoffice mail) (E-mail) Nursing Home Diversion Waiver — Fee for Service Match Page 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section }20.573, 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 Sater 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. For a request for formal hearing, a statement of all disputed issues of material fact; 5. For a request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; For a request for formal hearing, whether you request mediation, if it is available; 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. Nursing Home Diversion Waiver — Fee for Service Match Page 5 If you are in agreement with this audit and wish to make payment, please return this form along with your check. Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee. Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name GULFSIDE REGIONAL HOSPICE, INC. Provider ID 087570800 MPI Case Number 13-0812-000 Overpayment Amount $ 44,870.35 Fine Amount $ 8,974.07 Costs Assessed L $ 54.16 Total Amount Due $ 53,898.58 Check Number Payment for Medicaid Program Integrity Audit
