The Issue The issues in this case are: (1) Whether Respondent violated section 409.913, Florida Statutes, by failing to have documentation evidencing the receipt of current Zero Tolerance training in three employees' files; failing to have documentation showing that one employee has a high school diploma or equivalent; failing to have documentation of an implementation plan in one consumer's file; failing to have documentation of quarterly summaries in one consumer's file; and failing to have written policies and procedures addressing the staff training plan and specifying how pre-service and in- service activities will be carried out, including HIV/AIDS training, cardiopulmonary resuscitation training, and all other training mandated pursuant to section 381.0035; and (2) if so, the penalty that should be imposed.
Findings Of Fact The Parties and Medicaid Provider Agreement Petitioner is the state agency responsible for administering the Florida Medicaid Program2/ pursuant to chapter 409. Petitioner's duties include operating a program to oversee the activities of Medicaid recipients, providers, and their representatives to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913(1), Fla. Stat. To that end, Petitioner is authorized to conduct investigations of Medicaid providers to determine compliance with the Medicaid program. § 409.913(2), Fla. Stat. At all times relevant to this proceeding, Respondent was an enrolled Medicaid provider3/ providing residential rehabilitation and companion care services to the developmentally disabled pursuant to a valid Medicaid Provider Agreement ("MPA") with Petitioner.4/ The MPA establishes the terms and conditions of an enrolled provider's participation in the Medicaid program. A key condition is that the provider agrees to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program, including the Medicaid Handbooks. The Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook, dated November 2010 ("Disabilities Handbook"), and the Florida Medicaid Provider General Handbook, dated July 2008 ("General Handbook"), are among the laws and policies applicable to this proceeding. Petitioner's Inspection of Respondent's Facility On September 27, 2011, Ms. Gina Selwitz, an Inspector Specialist with Petitioner's Bureau of Medicaid Program Integrity ("MPI"),5/ along with another employee of Respondent's Bureau of MPI and a representative from the United States Department of Health and Human Services Centers for Medicare and Medicaid Services, conducted a site inspection at Respondent's facility, to determine Respondent's compliance with applicable Medicaid Program requirements. In the course of the inspection, Ms. Selwitz and the other inspection team members reviewed Respondent's employee records and recipient files for compliance with applicable Medicaid program requirements. They contemporaneously documented their findings on checklists. While at the facility, Ms. Selwitz hand-delivered a demand letter with an attached provider questionnaire form and a Certification of Completeness form to Respondent. The letter stated in pertinent part: Pursuant to Section 409.913, Florida Statutes ("F.S."), this is official notice that the Agency requests that documentation for services paid by the Florida Medicaid program to the above provider number. The Medicaid-related records to substantiate billing for the recipients identified on the enclosed printout are due within fifteen (15) calendar days of our receipt of this notification. In addition, please complete the attached questionnaire and submit it along with the copies of the Medicaid- related records. Please submit the documentation and the attached Certification of Completeness of Records to the Agency within this timeframe.... Respondent signed a form acknowledging receipt of the demand letter. Respondent completed and signed the provider questionnaire and the Certification of Completeness form and submitted them, along with the requested records, to Petitioner. By signing the Certification of Completeness form, Respondent verified that the records it provided were true and correct copies of all requested information. Petitioner received the records and completed forms on October 4, 2011. After the inspection was completed, Ms. Selwitz reviewed the checklists prepared during the inspection and determined that the following was missing from Respondent's files: (1) Documentation showing current Zero Tolerance training missing from employee files of Respondent's employees L.Q., A.G., and A.H.; (2) Documentation showing receipt of a high school diploma missing from the file of L.Q.; (3) Documentation of an implementation plan in the consumer file for A.G.-A.; (4) Documentation of quarterly summaries in the consumer file for L.G.; and (5) Written policies and procedures addressing the staff training plan and specifying how pre- service and in-service activities will be carried out, including HIV/AIDS training, C.P.R. training, and all other training mandated pursuant to section 381.0035. On February 22, 2011, Petitioner sent Respondent a Sanction Letter specifically identifying these deficiencies, stating that the deficiencies constitute violations of federal and state Medicaid laws, and imposing a total fine of $7,000.00. Findings Regarding Alleged Violations Zero Tolerance Training Ms. Selwitz testified that the inspection of Respondent's facility revealed that documentation evidencing the receipt of current Zero Tolerance training was missing from the employee files for A.G., A.H., and L.Q. Her testimony was supported by the inspection checklist prepared at the time of the inspection, indicating that L.Q.'s and A.H.'s employee files did not contain documentation showing that they had received Zero Tolerance training, and that the A.G.'s Zero Tolerance training had expired.6/ At hearing, Respondent conceded that A.G.'s Zero Tolerance training had expired. With respect to A.H., at hearing Respondent provided a document purporting to be an unofficial transcript from Tallahassee Community College showing that Respondent had completed Zero Tolerance in 2010, so that her training was current. However, Respondent acknowledged that this documentation was not in A.H.'s employee file at the time of Petitioner's inspection. With respect to L.Q., Respondent claims that documentation showing her current Zero Tolerance training was, in fact, present in her employee file, and that Petitioner's inspection team overlooked the documentation. Respondent noted that Delmarva7/ had inspected the facility approximately 15 days before Petitioner's inspection, and claimed that Delmarva's report did not show Zero Tolerance documentation deficiencies for L.Q.'s file. Respondent argues that this shows that that the Zero Tolerance documentation was present in L.Q.'s file when Petitioner inspected the facility and Petitioner's inspection team simply overlooked it. In support, Respondent provided a document purported to be the Delmarva inspection report. The persuasive evidence establishes that Respondent violated the requirement to maintain documentation of current Zero Tolerance Training in the employee files of A.G., A.H., and L.Q. At hearing, Respondent conceded that A.G.'s Zero Tolerance training had expired and that A.H.'s employee file did not contain the required Zero Tolerance Training documentation at the time Petitioner conducted its inspection. Further, Ms. Selwitz credibly testified that L.Q.'s employee file did not contain the required Zero Tolerance training information, and her testimony was buttressed by the contemporaneously-prepared inspection checklists. Respondent did not provide persuasive evidence to the contrary.8/ Accordingly, it is determined that Respondent violate Medicaid laws, rules, regulations, and policies by failing to have Zero Tolerance training documentation in the employee files for A.G., A.H., and L.Q. Educational Level Documentation for L.Q. Ms. Selwitz testified that during the inspection, the team determined that documentation was missing from L.Q.'s employee file showing that she possessed the required level educational training——i.e., a high school diploma or equivalent9/——to serve as direct care staff providing residential rehabilitation services. Ms. Selwitz's testimony was supported by the inspection checklist, which expressly noted the lack of high school diploma or general educational development ("G.E.D.") in L.Q.'s file and that a copy of L.Q.'s application for employment with Respondent stated that she had not graduated from high school. At hearing, L.Q., a director and employee of Respondent, testified on behalf of Respondent, and Respondent offered for admission into evidence a document purported to be L.Q.'s application for employment with Respondent. The application stated that Respondent had graduated from high school. L.Q testified that this application was completed in 2006 when she started working with Respondent, but subsequently testified that she graduated from high school in 2008. Her testimony was inconsistent with, and undercut the veracity of, the document Respondent offered to show that L.Q. met the educational training level requirement. Furthermore, even if L.Q. satisfied the applicable educational training requirements, Respondent did not provide credible evidence to overcome Petitioner's showing that the required documentation showing that training was not in L.Q.'s file when Petitioner inspected Respondent's facility. Accordingly, the credible, persuasive evidence establishes that Respondent violated Medicaid laws, rules, regulations, and policies by failing to have documentation of L.Q.'s educational status in her employee file. Inclusion of Implementation Plan in Consumer File Ms. Selwitz testified that the inspection also showed that a current Implementation Plan was not included in A.G.-A.'s consumer file, and her testimony was supported by the Residential Rehabilitation Services checklist that Petitioner's team completed at the time of the inspection. Respondent did not offer any testimony or other evidence to the contrary. Accordingly, Petitioner established that Respondent violated applicable Medicaid laws, rules, regulations, and policies by failing to have in its files a copy of the current Implementation Plan for consumer A.G.-A. Quarterly Summary Documentation in Consumer File Ms. Selwitz testified that Petitioner's inspection also revealed that Respondent failed to include a quarterly summary in L.G.'s consumer file documenting her progress, and this testimony was supported by the inspection checklists. At hearing, Respondent conceded this violation. Accordingly, Petitioner demonstrated that Respondent violated applicable Medicaid laws, rules, regulations, and policies by failing to have a quarterly summary in L.G.'s consumer file. Written Policies and Procedures Addressing Staff Training At hearing, Respondent conceded that at the time of the inspection, it failed to have written policies and procedures addressing the staff training plan and specifying how pre-service and in-service activities will be carried out, including HIV/AIDS training, C.P.R. training, and all other training mandated pursuant to section 381.0035. Accordingly, it is determined that Respondent violated applicable Medicaid laws, rules, regulations, and policies by failing to maintain this required documentation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order determining that Respondent violated federal and state Medicaid laws as charged in the February 22, 2012 Sanction Letter, and imposing a fine of $7,000.00. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012.
The Issue The issue in this case is whether Florida Administrative Code Rule 59G-4.070--including pages 2-2 and 3-3 and Appendices B and C of the Florida Medicaid Provider Handbook, Durable Medical Equipment/Medical Supply Services, which is incorporated in the rule by reference--is an invalid exercise of delegated legislative authority.
Findings Of Fact AHCA’S RULE ON MEDICAID COVERAGE FOR DME/MEDICAL SUPPLIES AND ITS IMPLEMENTATION Florida Administrative Code Rule 59G-4.070 "applies to all durable medical equipment and supply providers enrolled in the Medicaid program." It requires the providers to "comply with the Florida Medicaid Durable Medical Equipment and Supply Services Coverage and Limitations Handbook, April 1998, incorporated by reference, and the Florida Medicaid Provider Reimbursement Handbook, HCFA 1500 and EPSDT 221, incorporated by reference in 59G-5.020." (Joint Exhibit 1) The DME Handbook "explains covered services, their limits and who is eligible to receive them." The Billing Handbook "describes how to complete and file claims for reimbursement by Medicaid." (DME Handbook, p. i). DME is "medically necessary equipment that can withstand repeated use, serves a medical purpose, and is appropriate for use in the recipient’s home"; medical supplies are "medically necessary medical or surgical items that are consumable, expendable, disposable or non-durable and appropriate for use in the recipient’s home." (DME Handbook, pp. 1-2). The DME Handbook specifies that "[m]any DME services are available only to recipients under 21 years of age. To determine if a service is available to all recipients or just a specific range of recipients see the DME Fee Schedule in Chapter 3 of this handbook, Appendix B: For All Medicaid Recipients and Appendix C: For Recipients Under Age 21." (DME Handbook, p. 2-2). The DME fee schedule is a table of columns listing procedure codes, a description of the service or procedure associated with the procedure code, maximum reimbursement amounts and other information pertinent to each code. (DME Handbook, pp. 3-3 to 3-7). The DME Handbook states that "[t]he DME/medical supplies fee schedule is divided into 2 sections, Appendix B and C. Appendix B is a listing of covered DME/medical supplies for all Medicaid recipients, regardless of age. Appendix C is a listing of covered DME/medical supplies for Medicaid recipients under 21 years of age." (DME Handbook, p. 3-3). The DME fee schedule includes a column identified as "BR" (an abbreviation for "by report") and a column identified as "PA" (an abbreviation for "prior authorization"). (DME Handbook, p. 3-5). The DME Handbook states that the "BR" designation "identifies a 'non-classified' procedure code that requires a medical review to approve and price a procedure correctly." (DME Handbook, p. 3-5). "Non-classified" procedure codes "allow the provider to request reimbursement from Medicaid when a reimbursable item does not have an established fee identified." (DME Handbook, p. 3-5). The DME Handbook states that the "PA" designation "identifies the procedure codes that require prior authorization before the service is performed." (DME Handbook, p. 3-5). The DME Handbook specifies which DME/medical supply procedure codes listed in Appendices B and C of the DME Fee Schedule require prior authorization. (DME Handbook, p. 2-5, Appendices B and C). The Billing Handbook includes a Prior Authorization Request Form which providers must submit to the Medicaid office in order to obtain prior authorization for DME and medical supplies. The prior authorization form requires submission of a procedure code. (Billing Handbook, pp. 7-8 to 7-13; DME Handbook, p. 3-5). Neither the DME Handbook or the Billing Handbook includes any prior authorization procedure that providers can follow to obtain Medicaid coverage for DME or medical supplies that do not have a procedure code listed in Appendices B or C of the DME Handbook. In Appendix C of the DME Handbook, for Medicaid recipients under age 21, there is a miscellaneous code, "E1399", for durable medical equipment which requires prior authorization. No comparable code exists in Appendix B of the DME Handbook for Medicaid recipients age 21 and older. (DME Handbook, pp. 2-5 and C-14). A Medicaid recipient who needs durable medical equipment or medical supplies will present the request in the form of a prescription or certificate of medical necessity from a physician to a DME provider. The provider then uses the DME Handbook to determine if an item is covered by the Medicaid program. If an adult presents a doctor's prescription for an item of DME which is not listed in Appendix B of the DME Handbook, the provider will most likely decline to provide the services unless other arrangements are made to pay for the services. There is nothing in the DME Handbook which informs providers of any means by which adult Medicaid recipients can request coverage of items not listed in Appendix B. DME providers have not received any memo or directive from AHCA advising how DME providers could request coverage of items for adults not listed in Appendix B. ALTERNATIVES FOR RECIPIENTS NEEDING DME/MEDICAL SUPPLIES NOT LISTED IN THE DME HANDBOOK There are alternatives for Medicaid recipients to obtain DME/medical supplies which are not listed in the DME Handbook. They include the Medicaid Waiver Program, coverage through other Medicaid programs, an "exception authorization" process, and the fair hearing process. The Medicaid Waiver Program Section 1915(c) of the Social Security Act authorizes states to provide Medicaid home and community-based waiver programs. 42 U.S.C. Section 1396n(c). Under Medicaid waiver programs, states can provide services in addition to those authorized under their regular Medicaid program through the Medicaid state plan. Home and community-based waiver programs are targeted towards populations at risk of institutionalization. See 42 U.S.C. Section 1396n(c)(1). The federal Health Care Financing Administration (HCFA) has authorized Florida to administer a home and community-based waiver program for persons with developmental disabilities ("DS waiver program"). HCFA places a cap on the number of individuals who may participate in the waiver. The DS waiver program offers specialized medical equipment and supplies. However, before any service can be funded under the DS waiver program, it must be approved by the Developmental Services district office. Whether the services are approved or not is based, in part, on available funding. Both state and federal funding are capped under the DS waiver program. The DS Waiver program Services Directory states on pp. 3-4 that "the waiver endorses the supports already provided by family, friends and neighbors, and discourages the replacement of such natural and free supports with government-funded services[,]" and "[w]hen a service must be purchased, those available under the Medicaid State Plan must be accessed before purchasing services through the waiver." Coverage Through Other Medicaid Programs AHCA administers about 35 different programs within the regular Medicaid program. Some medical equipment is covered by programs other than the DME/Medical Supplies program. Hearing aides are covered by the hearing program; saline used with medical equipment is covered by the pharmacy program; and cochlear implants are covered under the physician services program. However, there was no evidence that any other Medicaid programs covered any of the medical equipment or supplies needed by Bell or Powell. Exception Authorization/Prior Authorization Process The "exception authorization" process is the same as the prior authorization process described in the DME Handbook and Billing Handbook. See Findings 7-12, supra. As found, AHCA’s form for requesting prior authorization requires submission of a procedure code; there is no general DME miscellaneous code listed in the rule for Medicaid recipients over age 21; and there are no instructions included in the DME or Billing Handbook which authorize providers to bill for DME on behalf of adult recipients under code E1399. (DME Handbook, Appendix B). Nonetheless, it is technically possible for AHCA administrators to override the Agency’s computer (by "forcing the age edit") to provide for payment of items for adults which are not listed in Appendix B of the DME Handbook. Although the Florida Legislature has declined AHCA's requests to appropriate funds for DME for adult Medicaid recipients for the past four legislative sessions, AHCA administrators have overridden the computer to get coverage of durable medical equipment and supplies that are not listed in the DME Handbook for three Medicaid recipients. However, this procedure is not described in Rule 59G-4.070. Fair Hearing Process Another alternative for Medicaid recipients who need coverage of DME/medical supplies not included in the DME Handbook is through the fair hearing process. Recipients are informed about their fair hearing rights when they are enrolled in the Medicaid program and also when a prior authorization request is denied. There are no form AHCA notices included in the DME Handbook or Billing Handbook advising recipients about their fair hearing rights when prior authorization for DME is denied. AHCA placed in evidence a form used by AHCA to advise recipients of their fair hearing rights when prior authorization for DME/medical supplies is denied. The form notice is out-of-date. It states that it is from the Department of Health and Rehabilitative Services (HRS) and refers to Consultec as the fiscal agent. It is the fiscal agent for AHCA, not HRS, which generates this notice; and Unisys, not Consultec, has been AHCA’s fiscal agent for about the past five years. The form notice states that if individuals want a fair hearing they should write to the Office of Public Assistance, Appeal Hearing, in Jacksonville, Florida. At least one other Appeal Hearing office is located in Tallahassee. If no prior authorization request is made because no procedure code is listed in the DME Handbook, there would be no notice of denial of a prior authorization request. HCFA LETTER HCFA sent a letter to State Medicaid Directors on September 4, 1998, setting out federal Medicaid requirements regarding DME coverage. The HCFA letter of interpretive guidance reminded state Medicaid directors that the mandatory home health services benefit under Medicaid includes medical supplies, equipment, and appliances suitable for use in the home and summarized the applicable federal law. It also stated: An [i.e., DME] ME policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list, is inconsistent with the federal law discussed above. In evaluating a request for an item of [D]ME, a State may not use a "Medicaid population as a whole" test, which requires a beneficiary to demonstrate that, absent coverage of the item requested, the needs of "most" Medicaid recipients will not be met. This test, in the [D]ME context, establishes a standard that virtually no individual item of [D]ME can meet. Requiring a beneficiary to meet this test as a criterion for determining whether an item is covered, therefore, fails to provide a meaningful opportunity for seeking modifications of or exceptions to a State's pre-approved list. Finally, the process for seeking modifications or exceptions must be made available to all beneficiaries and may not be limited to sub- classes of the population (e.g., beneficiaries under the age of 21). In light of this interpretation of the applicable statute and regulations, a State will be in compliance with federal Medicaid requirements only if, with respect to an individual applicant’s request for an item of [D]ME, the following conditions are met: The process is timely and employs reasonable and specific criteria by which an individual item of DME will be judged for coverage under the State’s home health services benefit. These criteria must be sufficiently specific to permit a determination of whether an item of [D]ME that does not appear on a State’s pre-approved list has been arbitrarily excluded from coverage based solely on a diagnosis, type of illness, or condition. The State's process and criteria, as well as the State's list of pre- approved items are made available to beneficiaries and the public. Beneficiaries are informed of their right, under 42 C.F.R. part 431 Subpart E, to a fair hearing to determine whether an adverse decision is contrary to the law cited above. PETITIONER WILLARD BELL Willard Bell is a Medicaid recipient who is over age Since 1992, he has been in a Medicaid health maintenance organization (HMO). Bell is an insulin-dependent diabetic and has undergone numerous operations and hospitalizations as a result of his diabetes. In 1996, Mr. Bell's doctor prescribed an insulin pump and supplies. AHCA district personnel did not know how to obtain coverage for Mr. Bell's insulin pump, since it is not covered by the regular Medicaid program for adults. They needed technical guidance on how to do so. In February 1999, after over two years of requests and grievance proceedings, AHCA provided Bell an insulin pump under a settlement agreement with AHCA attorney Gordon Scott. In order to make payment for this insulin pump, AHCA used code E1399--the miscellaneous durable medical equipment code that is designated only for recipients under 21--and "forced the age edit" on the computer. Rule 59G-4.070 also does not provide Medicaid coverage for supplies necessary for the operation of an insulin pump (code E0781 applies to Medicaid recipients under 21 years of age). Bell's HMO now pays for the supplies for the insulin pump; but due to numerous problems with his HMO, Bell wants to switch from his HMO to the regular Medicaid program. Bell did not want to switch until he was assured that he will be able to get his insulin pump supplies through Medicaid. Shortly after obtaining the insulin pump through the Gordon Scott settlement agreement, Bell and his attorney, Robert Bencivenga, requested Medicaid coverage for supplies necessary for the operation of his insulin pump. Bencivenga made several calls to Stephanie Perry, an AHCA employee at the AHCA Jacksonville office; he also faxed Perry a letter on March 15, 1999, requesting confirmation that the Agency would pay for Bell’s pump supplies and indicating some urgency to this request. Bencivenga also left several messages with Gordon Scott. Bencivenga did not receive any response to his fax and never got to speak with Scott. After receiving no response from AHCA, Bencivenga contacted Miriam Harmatz of Florida Legal Services to see what could be done next. Harmatz then wrote to Scott stating that Bell wanted to switch from his HMO to the regular Medicaid program but that he first needed assurances from AHCA that the supplies necessary to continue utilization of the pump would be available from Medicaid. Moses Williams, another attorney for AHCA, wrote Harmatz a letter dated April 7, 1999, suggesting that Bell be patient with his HMO; the letter did not state whether or not AHCA would pay for the pump supplies should Bell leave his HMO. PETITIONER JUSTIN POWELL AND HIS MOTHER BARBARA POWELL Justin Powell is a 21 year-old Medicaid recipient. Justin has multiple severe disabilities, including mental retardation and cerebral palsy. He breathes through a tracheotomy and is tube-fed by means of a feeding pump. Justin’s doctors have prescribed a number of items of specialized medical equipment and supplies for him, including: a tracheotomy mask or collar; inner cannula; enteral feeding supply kit, both pump fed and gravity fed; compressor; and nebulizer. Justin will need this equipment and supplies for the rest of his life. Justin Powell has lived with his parents, Barbara and Phillip Powell, along with his brother, sister-in-law, and their children, for his entire life. Justin's mother is his primary caretaker. Justin is dependent on her for all of his activities of daily living, as well as for administering various health care treatments, including breathing treatments. Until Justin turned 21, Medicaid provided him coverage for the following equipment and supplies he needs in order to breathe and eat: a tracheotomy mask or collar (code A4621); tracheostomy inner cannula (code A4623); enteral feeding supply kit, either pump fed or gravity fed (code B 4035, B 4036); nebulizer (code E 0575); and a compressor (code E 0570) that powers the nebulizer. (DME Handbook, Appendix B). In order to obtain necessary equipment and supplies, Mrs. Powell simply had to contact Lincare, a DME provider. If any of the equipment Justin needed broke down, Medicaid provided for immediate replacement. When Justin turned 21, Lincare declined to provide further coverage for the DME and supplies because the Rule does not provide Medicaid coverage for Medicaid recipients 21 or older. In response to the information from Lincare, Barbara Powell made numerous calls to AHCA officials to request Medicaid coverage for the items. Eventually she was directed to the DS Waiver Program, which assigned Justin to DS Waiver Support Coordinator Rhonda Allen in July 1998. When Mrs. Powell asked Allen about obtaining durable medical equipment and supplies through the DS Waiver Program, she was told that Allen has to submit requests to Developmental Services, which refers it to a budget committee. Allen then waits for a decision from the budget committee as to whether the item requested will be funded or not. Just because the support coordinator requests an item does not necessarily mean it will get funded. The support coordinator does not make the decision as to whether or not a requested item is funded by the DS waiver. Therefore, Allen could not say whether or not additional items of durable medical equipment and supplies for Justin Powell would be approved for coverage under the DS Waiver program if she were to request them. The DS waiver provider has no role in determining what items get funded under the DS Waiver program. Allen and Barbara Powell discussed Justin Powell’s need for a G-tube, a trach, diapers, and the trach mask. Since the family was paying for a trach mask and a doctor was donating a G- tube, the DS waiver program would not cover these items. If there are resources in the community that will pay for items, the waiver program will not provide coverage. The only supplies funded through the DS waiver to date have been Justin's feeding bags. The only piece of equipment funded through the waiver to date is Justin's suction machine. Over the past year, Allen advised Barbara Powell that the DS waiver program could not cover all of the medical equipment and supplies Justin's needs because funds were low and the DS waiver program was waiting for additional funding. If some of Justin’s equipment ceases to operate, Barbara Powell will have to take Justin to the hospital while she waits for a decision from the DS Waiver program as to whether it will fund replacement equipment. Justin’s only income is $500 per month SSI. Barbara Powell now spends family money to purchase DME and supplies for Justin which are no longer covered by Medicaid. The Powells are re-using some equipment and supplies that should be replaced if money were no object. Due at least in part to the cost of providing Justin's equipment and supplies since he turned 21, the Powell family is under financial stress. Currently, the family is behind in its electricity bill. There was no evidence that AHCA gave the Powells specific written notice after Justin turned 21 that they could pursue a fair hearing to contest the termination of coverage of DME and medical supplies under the regular Medicaid program.
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 The issue for determination is whether Respondent committed the offense set forth in Petitioner's letter of agency action dated March 9, 2012, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, New Life was issued individual Medicaid provider number 140680900. At all times material hereto, New Life was enrolled as an assisted living facility. At all times material hereto, New Life had a valid Medicaid Provider Agreement with AHCA (Agreement). Under the Agreement, New Life was authorized to provide assistive living services to Medicaid recipients. The Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, effective July 2009, hereinafter Handbook, provides, among other things, requirements of Medicaid home health services providers and sets forth pertinent Medicaid policies and service requirements. The Handbook is provided to each Medicaid provider upon enrollment into the Medicaid program and is available online. Each provider is expected and presumed to be familiar with the Handbook. The Handbook was incorporated by reference into rule 59G-4.025, Assistive Care Services. No dispute exists that, at all times material hereto, New Life was an assistive care services provider as defined by the Handbook. The Handbook provides in pertinent part: Recipients receiving Assistive Care Services must have a complete assessment at least annually . . . or sooner if a significant change in the recipient's condition occurs . . . . An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. The assessment for a resident of a ALF . . . must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. * * * The assessment for ALF [assisted living facility] residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. * * * Along with the annual assessment requirement, all recipients receiving ACS [Assistive Care Services] must have an updated Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA- Med Serv Form 035, July 2009, signed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) and the Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, completed and available in the recipient's case file at the facility. * * * Every ACS recipient must have a service plan completed by the ACS service provider. The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, shall be used for each recipient receiving ACS. The form must be included in the recipient's case file at the facility. The ALF, RTF [residential medical facility] and AFCH [adult family care home] are responsible for ensuring the service plan is developed and implemented. * * * The Resident Service Plan for Assistive Care Services (AHCA-Med Serv Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing and based on information contained in the health assessment. . . . * * * A new service plan is required on an annual basis or sooner if a significant change in the recipient's condition occurs. The new service plan must be completed no more than 15 days after the annual assessment or an assessment because of a significant change in the recipient's condition. * * * In addition to records required by the applicable licensure standards, ACS records that must be kept include: Copies of all eligibility documents; Health Assessment Forms, AHCA Form 1823 . . .; Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA-Med Serv Form 035; The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036; and The Resident Service Log, AHCA-Med Serv Form 037. This documentation must be maintained at the facility, kept for at least five years, and be made available to the Agency for Health Care Administration monitoring or surveyor staff or its designated representative, upon request. . . . * * * ACS documentation may be in electronic format. The original, signed . . . documents must be kept in the recipient's case file in the facility . . . for audit, monitoring and quality assurance purposes. . . . Handbook at P 2-7 through 2-11. AHCA's investigator performed a site visit at New Life on December 8, 2011. The investigator reviewed case files of residents for the service-period covering January 1, 2011, through November 30, 2011 (service-period). AHCA's investigator found deficiencies in the case files of seven residents at New Life: M.B.; R.F.; E.H.; R.J.; I.M.; K.L.; and J.S. Additional documents, not contained in the case files during the site visit, were provided subsequent to the site visit. Regarding Resident M.B., the Health Assessment and the Resident Service Plan were dated August 17, 2010, which was after the service-period; and the Certification of Medical Necessity was dated March 28, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident M.B. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. As to Resident R.F., the Health Assessment was dated January 1, 2011, which was within the service-period but not up- to-date; the Resident Service Plan was up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.F. lacked the Health Assessment and Certification of Medical Necessity for the service-period. Regarding Resident E.H., the Health Assessment was dated January 24, 2011, and was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated September 27, 2002, with no more recent Certification of Medical Necessity. The evidence demonstrates that the case file of Resident E.H. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. As to Resident R.J., the parties stipulated that the Health Assessment was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.J. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. Regarding Resident I.M., the Health Assessment and the Resident Service Plan were up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-plan and after the site visit. The evidence demonstrates that the case file of Resident I.M. lacked the Certification of Medical Necessity for the service-period. As to Resident K.L., the Health Assessment was dated March 1, 2012, which was not within the service-period and after the site visit; the Resident Service Plan was not provided; and the Certification of Medical Necessity was provided, but the date as to the year was unintelligible even though the month and day were intelligible, i.e., March 1. The evidence demonstrates that the case file of Resident K.L. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. Regarding Resident J.S., the Health Assessment was dated August 22, 2009, which was not within the service-period; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and was after the site visit. The evidence demonstrates that the case file of Resident J.S. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service period. The Director and owner of New Life is Ethel Newton. Ms. Newton has been the Director and owner for the past 13 years. She was not familiar with the Health Assessment form, the Resident Service Plan form, or the Certification of Medical Necessity form. Ms. Newton advised AHCA's investigator that she was not familiar with the forms and admitted same at the hearing. Ms. Newton historically depended upon the assistance of the Department of Children and Family Services (DCF) to complete any required forms. She depended upon DCF until 2005 when DCF closed its local office which had been assisting her. After DCF closed its local office, Ms. Newton depended upon the residents' case managers at New Horizons, an agency where the residents' physicians are located, to complete any required forms. Five of the seven residents had case managers at New Horizons; J.S. and E.H. did not have case managers at New Horizons. E.H. is no longer a resident at New Life. Ms. Newton is willing to cooperate with AHCA and do whatever it takes to have the required forms completed timely and correctly. The evidence does not demonstrate that Ms. Newton intentionally failed to complete the required forms. None of the seven residents were harmed as a result of the deficiencies in the documentation. No evidence was presented demonstrating that New Life has any prior administrative sanction or penalty. No evidence was presented demonstrating that New Life has any prior violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility, violated Florida Administrative Code Rule 59G-9.070(7)(e) by failing to have in the case files of Resident M.B., Resident K.L., and Resident J.S. a Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident R.F. a Health Assessment and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident E.H. and Resident R.J. a Resident Service Plan and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; and by failing to have in Resident I.M.'s case file a Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; Requiring New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility to enter into a corrective action plan; and Imposing a fine against New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility in the amount of $1,750.00. S DONE AND ENTERED this 14th day of November, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2012.
The Issue Whether Respondent violated section 409.913, Florida Statutes, by failing to retain required Medicaid records, thereby incurring a $10,000 fine according to Florida Administrative Code Rule 59G-9.070(7)(e).
Findings Of Fact Respondent is a Medicaid Provider of Assistive Care Services in Oakland Park, Florida. Annie Mathew is a registered nurse who manages Respondent's facility. Respondent was obligated, pursuant to the Medicaid Provider Agreement executed in June 2008, to comply with applicable Medicaid laws, administrative rules, and Medicaid handbooks. The Agency is the state agency charged with the administration of the Medicaid program in Florida. Within the Agency, the Inspector General ensures the integrity of the Medicaid program by conducting investigations of providers to ensure compliance with all Medicaid rules. On December 7, 2011, the Agency conducted an unannounced on-site inspection of the medical records retained by Respondent. Mr. Cedeno and Ms. Hollis-Stancil conducted the investigation, reviewing ten recipient files. The investigators found that nine of the recipient files did not contain a proper service plan; one recipient did not contain a service plan at all, and had an outdated health assessment. Respondent did not use the Medicaid form found in the Medicaid Assistive Care Services Coverage and Limitations Handbook for service plans; instead, Respondent used a form created by Respondent, which contained some, but not all, of the components addressed in the Medicaid form. The investigators noticed that the facility was clean and in good condition. At the hearing, Respondent admitted to not using the Medicaid form for service plans, and agreed that not all of the components addressed in the Medicaid form were addressed in the form created by Respondent. Specifically, the service plan must contain the expected outcome for the resident, and identify who is going to provide specific services to the resident. Respondent's forms did not reflect this information. As to one recipient, recipient S.V., the file did not contain a current health assessment. The health assessment found in the file had expired in September 2011, three months prior to the inspection in December 2011. All ten counts against Respondent are supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to rule 59G-9.070(7)(e), the Agency for Healthcare Administration fine Respondent $10,000 for ten first offense counts of failure to comply with the Medicaid rules. DONE AND ENTERED this 19th day of March, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2013.
Findings Of Fact Upon consideration of the oral and documentary' evidence adduced at the hearing, the following relevant facts are found: DHRS administers the Program which is jointly funded by the state and federal government under Title XIX of the Social Security Act. The Program is voluntary and is subject to both state and federal laws, rules and regulations. The Program does not reimburse providers such as Dr. Clement for all services rendered. Only those services which are determined to be medically necessary or which the state has determined it wishes to provide are covered by the Program. The services to be rendered and the fees to be paid for those services are set forth in the policy manuals and fee schedules which are given the provider when he enrolls in the Program. Under the Program, the provider files claims in accordance with the policies set forth in the manual. Those claims are computer processed and it is assumed that the provider is submitting the claims in accordance with the policies. The computer system is not programmed to reject all erroneous claims. Therefore, the provider is automatically reimbursed based upon claims submitted. The Program operates on the honor system and must "pay and chase" providers who submit improper claims. Under the Program the state is required to protect the integrity of the Program by reviewing providers for possible fraud and abuse. The Program utilizes a Surveillance Utilization and Review System (SURS) which compares a provider's Medicaid practice with that of his peers. This system takes the provider's computer generated claims history and compares it both quantitatively and qualitatively with the average practice of his peers. When a potential problem is detected, the provider's practice is further reviewed to determine if fraud or abuse has occurred. On November 4, 1983, Dr. Clement signed a provider agreement with DHRS and operated under this provider agreement at all times material to this proceeding. In signing this provider agreement, Dr. Clement agreed to "submit requests for payment in accordance with program policies" and to, "abide by the provisions of the Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. In billing under the Program, Dr. Clement is expected to provide services in accordance with generally accepted practices of his profession of dentistry. Those services for which a provider may submit claims are set forth in the Children's Dental Services Manual (HRSM 230-22), a copy of which was provided to Dr. Clement when he entered the Program. In addition to the manual, Dr. Clement was provided with an EDS Billing Handbook which explained the mechanics of submitting a claim. HRSM 230-22 is merely a compilation of procedures for which the Program will reimburse the provider along with the reimbursement rate for each procedure. The manual utilizes procedures and codes utilized by the American Dental Association, is prepared with technical assistance of dental consultants, and is reviewed by various dental associations. The manual is designed for use by dental providers who are knowledgeable in the field of dentistry and are utilizing generally accepted principles of dentistry. In 1985 a SURS Level I Review report, comparing Dr. Clement with his peer group of general dentists providing services to children, indicated possible inappropriate billing of the Program. Because of the nature and extent of the billing problems, Dr. Clement's case was referred to the Medicaid Fraud Control Unit (MFCU) of the State of Florida's Auditor General's Office for possible criminal prosecution. DHRS took no further action pending the criminal investigation. Criminal charges were subsequently filed against Dr. Clement as a result of the MFCU investigation and Dr. Clement's case was referred back to the Medicaid Office of Program Integrity for review of nine possible areas of program policy violations which were not part of the criminal prosecution. The Program thereupon conducted its own investigation into possible abuse by Dr. Clement. Using the preliminary investigation done by an HRS dental consultant who reviewed Dr. Clement's practice for MFCU, and the original Level I Review report, a DHRS investigator reviewed ad hoc computer reports of claims submitted by Dr. Clement for specific dental procedures. Based upon the computer analysis of claims submitted, as well as the advice of the dental consultant, the Program identified nine areas of Dr. Clement's practice of Medicaid billing which were not in compliance with Medicaid billing procedures or generally accepted standards of dental practice. On sixty-six occasions, Dr. Clement submitted claims and was paid for procedures such as examinations, prophylaxis and fluoride treatment at intervals of less than six months. HRSM 230-22 recommends that such procedures be performed no more frequently than once every six months, and this recommendation is recognized under generally accepted standards of dentistry. This recommendation is applicable to both private pay patients and Medicaid patients who are generally indigent. Although such treatment may be necessary on occasions at shorter intervals, Dr. Clement offered no evidence to justify the frequency or the necessity of providing such procedures at intervals of less than the recommended six months. On two hundred and eighty six occasions, Dr. Clement improperly filed claims and received payment for consultations. HRSM 230-22 only allows claims for consultations by a dental specialist (oral surgeon, periodontist, endodontist, or prosthodontist). Dr. Clement is not a dental specialist and should not have submitted claims for such procedures. The manual's definition and interpretation of the appropriate billing procedure for consultation services is in accordance with the generally accepted practice of dentistry. On ninety four occasions, Dr. Clement submitted claims and received payment for behavior management and nitrous oxide on the same visit. HRSM 230- 22 only allows claims for behavior management where nitrous oxide is not used. There was no evidence to show that both behavior management and nitrous oxide on the same visit was necessary. On seven occasions, Dr. Clement submitted claims and received payment for extracting more than one first tooth in a given quadrant. HRSM 230-22 provides a fee of $10.00 for the extraction of the first tooth in a given quadrant which is billed on a claim as procedure D7110 whereas each additional tooth extracted in the same quadrant at the same time is reimbursed at the rate of $7.00 and billed on a claim as procedure D7120. The fee for the removal of the first tooth in a given quadrant is higher than the fee for each succeeding tooth in the same quadrant because anesthesia for the first tooth does not have be administered for each succeeding tooth in the same quadrant. Dr. Clement received payment for 117 alveolectomies (a reshaping of the bone) performed on 52 children which is an excessive number. Alveolectomies should only be performed in extreme cases where, without an alveolectomy, the insertion of dentures or partials would be impossible. It is standard dental practice to perform an alveolectomy only where a denture is supplied. Performing an alveolectomy on a child is not a common practice. There was no evidence that Dr. Clement performed the alveolectomies in preparation of insertion of partials or dentures. Dr. Clement filed an excessive number of claims for pulp caps. A pulp cap is a protective material utilized when the pulp of the tooth is exposed (direct pulp cap) or nearly exposed (indirect pulp cap). HRSM 230-22 differentiates a pulp cap from a medicated base. A pulp cap is reimbursable as a separate claim, the medicated base is not. Dr. Clement claimed and received payment for pulp caps 68.7 percent of the time in conjunction with a tooth restoration. There was credible evidence to show that in the generally accepted practice of dentistry, pulp caps are used no more than 5 percent of the time in a tooth restoration. Dr. Clement billed for pulp caps whenever he applied a medicated base, even though the pulp was not exposed or nearly exposed. On one hundred occasions Dr. Clement improperly filed claims and received payment for palliative (emergency) treatment at the same time that he filed a claim and was paid for regular dental treatment. Palliative treatment is used to relieve pain and discomfort on an emergency basis when time and circumstances contra-indicate a more definitive treatment and additional services. In the general accepted practice of dentistry, palliative treatment is used as a temporary measure to assist the patient until such time as regular treatment can be provided. Palliative treatment and any other treatment are mutually exclusive and normally would not be given on the same day. On those occasion where Dr. Clement filed claims and received payment for both palliative treatment and regular treatment on the same day, there is insufficient evidence to show that this treatment was within the generally accepted practice of dentistry. On sixteen occasions Dr. clement improperly filed claims and was paid for prophylaxis, periodontal scaling, and gingival curettage all on the same date of service. Prophylaxis is the standard cleaning of the teeth. Periodontal scaling is a more advanced procedure of cleaning wherein larger deposits of caclculus are removed by scraping. Gingival curretage is a more drastic procedures wherein pockets which have formed between the gum and the teeth are scraped out. While all three procedures are different, they overlap somewhat and it is not a generally accepted practice of dentistry to perform more than one of these procedures at any given time. There was no evidence presented to show that performing all three procedures on the same date was necessary or was within the generally accepted practice of dentistry. Dr. Clement filed an excessive number of claims for gingival curretage. Dr. Clement claimed and received payment for gingival curretage on 14 percent of his patients under the age of 17. In the generally accepted practice of dentistry, the use of gingival curretage on children will not normally exceed 1 percent to 3 percent for ages 10 and under or 3 percent to 6 percent over the age of 10. Although Dr. Clement urged that these claims for gingival curretage had been given prior approval, the evidence showed that the prior approval had been given based on information furnished by Dr. Clement and the dental consultant giving the prior approval did so on that information on a case by case basis and did not know of the excessive use of gingival curretage by Dr. Clement. Based on the nine areas cited for inappropriate billing, there is substantial competent evidence to show that Dr. Clement was not following generally accepted standards of dental practice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Department of Health and Rehabilitative Services enter a Final Order finding that Dr. Clement has abused the Florida Medicaid Program and terminating Dr. Clement from participation in the Florida Medicaid Program. Respectfully submitted and entered this 7th day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3023 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 16. 17. Adopted in Finding of Fact 17. 18. Adopted in Finding of Fact 18. 19. Adopted in Finding of Fact 19. 20. Adopted in Finding of Fact 20 as clarified. 21. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 17 but clarified. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. 9 The first sentence adopted in Finding of Fact 19. The balance is rejected as immaterial and irrelevant. COPIES FURNISHED: Theodore E. Mack, Esquire 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32399 Harold E. Regan, Esquire 308 East College Avenue Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner is an existing Medicaid provider. Specifically, Petitioner provides support coordination services to the developmentally disabled under the Development Services/Home and Community Based Services waiver support coordination program (Program). Petitioner has been a Program provider since 1993. The purpose of the Program is to prevent the institutionalization of developmentally disabled persons through the development of community supports and services. Florida and the federal government fund the Program, in accordance with the provisions of Title 42, Code of Federal Regulations, Sections 440.180 and 441. Traditionally, Respondent has been the primary agency in Florida responsible for discharging Florida's responsibilities under the Program. Chapters 96-387 and 95-393, Laws of Florida, transferred certain responsibilities under Medicaid from Respondent to the Agency for Health Care Administration. However, the Division of Developmental Services (Division), which is part of Respondent, continues to develop substantive policy under the Program. Under Section 393.001(9), Florida Statutes (1995), Respondent, primarily through the Division, receives and administers federal and state funds for the developmental disabilities program established under state and federal law. As a Program provider, Petitioner received a memorandum dated May 5, 1995, requiring that Petitioner execute a revised Medicaid provider agreement and waiver support assurances to continue to participate in the Medicaid program after July 1, 1996, as a provider of services in the Program. The memorandum warns that it serves as the required 30-day notice of termination of the existing agreement if Petitioner fails to sign and return the revised documents by the deadline. Petitioner signed and returned the revised documents by the deadline to continue to participate under the Program. The documents are a Medicaid support agreement, waiver support assurances, and an "HRS Developmental Services Process Monitoring Instrument Waiver Support Coordination May 10, 1996 Version" (Monitoring Instrument), of which the waiver support assurances are a part. This order refers to all of the revised documents collectively as the Revised Documents. Respondent has required all persons seeking to provide services under the Program to sign and deliver the Revised Documents. The Revised Documents contain different provisions from their predecessors in effect prior to July 1, 1996. The Medicaid provider agreement sets forth the general provisions governing Respondent and each provider under the Medicaid program. Many, though not all of these provisions, are the same as provisions of Section 409.907, Florida Statutes. The record does not demonstrate to what extent the contract provisions not found within Section 409.907 are the same as provisions of other state or federal statutes, rules and regulations, or case law. The record also does not demonstrate if variations between contract provisions and provisions of Section 409.907 are substantial. The revisions to the waiver support assurances, to which Petitioner objects, pertain to quality assurance. The monitoring instrument states, at page 3: Rather than continuing past policies of focusing state quality assurance efforts solely on traditional monitoring activities, [D]evelopmental [S]ervices is seeking to transform its current quality assurance system to one which elicits valued outcomes for the individuals served in conjunction with the overall service delivery system processes contributing to the achievement of these individualized outcomes. This process will lead to an enhanced system of quality assurance known as quality improvement. Toward this end, the monitoring instrument explains, at page 4: Around December 1993, a task force of providers, central office staff, program administrators and direct services staff was convened for the purpose of revisioning [sic] the traditional [D]evelopmental [S]ervices quality assurance system. . . . We believe the quality enhanced monitoring system described in this work book is the first step in moving development services toward a revisioned [sic] system of measuring quality. The Monitoring Instrument states the nature of the monitoring process, the requirements of self-assessment and recertification, the protocol for onsite monitoring by the Division, and the conditions for termination of a provider's services.
