The Issue The issue in this matter concerns the amount of monetary sanctions that the Agency for Health Care Administration may impose on Respondent pursuant to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070(7)(e) based on the overpayment of Medicaid reimbursements made to Respondent.
Findings Of Fact 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, otherwise known as the Medicaid program. See § 409.902(1), Fla. Stat. AHCA is responsible for administering and overseeing the Medicaid program in the State of Florida. See § 409.913, Fla. Stat. AHCA's Bureau of Medicaid Program Integrity (“MPI”) is the unit within AHCA that oversees the activities of Florida Medicaid providers and recipients. MPI ensures that providers abide by Medicaid laws, policies, and rules. MPI is responsible for conducting audits, investigations, and reviews to determine possible fraud, abuse, overpayment, or neglect in the Medicaid program. See §409.913, Fla. Stat. At all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients. Respondent had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 0742236-00. The Medicaid provider agreement is a voluntary contract between AHCA and the provider. 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. Pursuant to its statutory authority to oversee the integrity of the Medicaid program, MPI conducted an audit of Respondent's paid claims for Medicaid reimbursement for the period from April 1, 2011, through October 31, 2013. The audit’s purpose was to verify that claims AHCA paid to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid laws, policies, and applicable rules. As a result of the audit, AHCA determined that Respondent was overpaid in the amount of $177,717.69 for services that, in whole or in part, were not covered under the Medicaid program. AHCA also sought to impose sanctions upon Respondent consisting of an administrative fine of $34,192.30,2/ as well as investigative, legal, and expert witness costs of $1,127.66. Respondent is a dentist specializing in pediatric dentistry. He has practiced for over 43 years. He maintains offices in both Clearwater and Jacksonville, Florida. Respondent’s dental practice serves almost exclusively developmentally disabled children. Many of his patients suffer from severe behavioral, emotional, mental, physical, or social handicaps or other medical issues. Respondent’s practice is primarily based on referrals of special needs patients who other pediatric and general dentists send to him for treatment. Approximately, 95 percent of Respondent’s patients are Medicaid recipients. At the final hearing, AHCA presented the testimony of Robi Olmstead, an AHCA administrator with MPI. Ms. Olmstead's responsibilities include overseeing MPI investigations and supervising AHCA staff’s performance of Medicaid audits. With over 10 years of experience in her position, Ms. Olmstead is very familiar with and knowledgeable about how MPI conducts Medicaid audits. Specifically related to this matter, Ms. Olmstead, in her official capacity with AHCA, signed the FAR that MPI presented to Respondent on April 8, 2015. Ms. Olmstead described MPI’s Medicaid audit of Respondent’s Medicaid claims.3/ Using AHCA's data support system, MPI investigators accessed the complete universe of Respondent’s Medicaid claims. MPI selected the period from April 1, 2011, through October 31, 2013, as the audit period. MPI calculated the amount of overpayment based on its review of a random sample of 35 recipients for whom Respondent submitted 507 claims during the audit period. AHCA then contacted Respondent and requested that he submit documents to substantiate his Medicaid claims for the 35 recipients. In response to AHCA’s request for documents, Respondent provided his records of service and billing for each of the 507 claims for the 35 recipients. AHCA, upon receiving Respondent’s records, forwarded them for a peer review. The peer reviewer evaluated the records and prepared worksheets reflecting a determination regarding the nature of the dental services rendered for each claim, and whether such claim was eligible for payment under the Medicaid program. Based on the peer reviewer’s determination, MPI calculated that Respondent had been overpaid for all claims he presented within the audit period by a total of $177,717.69. After determining that Respondent had been overpaid, AHCA prepared and sent to Respondent a Preliminary Audit Report (“PAR”), dated February 12, 2015. The PAR notified Respondent that the audit revealed that he had been overpaid by $177,717.69. On April 8, 2015, AHCA issued the FAR. The FAR served as AHCA’s final determination that Medicaid had overpaid Respondent. The FAR set forth the following bases for AHCA’s determination that Respondent was overpaid: Documentation Supported a Lower Level of Service (“LL”): The peer review of Respondent’s records revealed that the documentation Respondent submitted for payment did not support level of service for some claims. These claims may involve an established patient that Respondent coded as a new patient (which is billed at a higher level). AHCA believed that Respondent should have used a different code for the service he provided. AHCA considered the Medicaid payments made to Respondent for these services in excess of the appropriate amount an overpayment.4/ No Documentation (“No Doc”): Respondent’s records revealed that some medical services for which Respondent billed and received payment were incomplete or lacked sufficient documentation. AHCA considered the Medicaid payments for these services an overpayment.5/ Not Medically Necessary (“NMN”): The peer review of Respondent’s claims revealed that the documentation did not support the medical necessity of some of the claims Respondent presented for payment. (Respondent explained that this category of claims related to occlusal x-rays he obtained from dental patients for whom he also had taken panorex x-rays. The peer review considered these charges duplicative.) Therefore, AHCA considered the Medicaid payments made to Respondent for these claims an overpayment.6/ Erroneous Coding (“EC”): The peer review of Respondent’s claims revealed that some services rendered were erroneously coded on the submitted claim. These services documented one activity, but another billing code was identified. Consequently, AHCA considered Medicaid payments made to Respondent for claims in excess of the appropriate service an overpayment.7/ Behavioral Management (“BM”) Services Not Reimbursable: The peer review of Respondent’s claims revealed that Respondent did not adequately explain his claims for BM services. Respondent should not have requested payment for BM without explaining why BM was used or the specific type of BM techniques utilized for treatment. Furthermore, the peer review determined that Respondent should not have included BM in his claim if he also billed for either sedation or analgesia on the same date of service. AHCA considered Medicaid payments made to Respondent for these BM claims an overpayment.8/ The FAR also notified Respondent that AHCA had calculated and was seeking to assess a fine of $35,543.54 (since lowered to $34,192.30). Ms. Olmstead explained that, in accordance with section 409.913(15), (16), and (17) and rule 59G- 9.070, AHCA must apply sanctions for violations of federal and state laws, including Medicaid policy. AHCA determined to sanction Respondent in the form of an administrative fine. After determining that Respondent had been overpaid for Medicaid claims, AHCA prepared a Documentation Worksheet for Imposing Administrative Sanctions (“Worksheet”). The Worksheet was signed on April 7, 2015, by an AHCA investigator. Ms. Olmstead also signed the Worksheet after she reviewed and approved the form. The Worksheet specified how AHCA calculated the fine it sought to impose on Respondent for the Medicaid claims violations listed above. As noted on the Worksheet, AHCA found a total of 58 claims violated Medicaid laws, policies, and rules. The specific number of claims in violation were: lower level of service 38; no documentation, 9; not medically necessary, 8; error in coding, 2; and behavior management/illegal documentation, 1. The Worksheet also contained a section that read: Confirm that you have considered the following via checking the box: I have considered the serious & extent of the violation. I have considered whether there is evidence that the violation is continuing after written notice. I have considered whether the violation impacted the quality of medical care provided to Medicaid recipients. I have considered whether the licensing agency in any state in which the provider operates or has operated has taken any action against the provider. If the sanction to be imposed is suspension or termination, I have considered whether the sanction will impact access by recipients to Medicaid services. The AHCA investigator placed a checkmark by each consideration. AHCA did not use any additional forms or methods to document its consideration of these factors. AHCA did not provide the Worksheet to Respondent with the FAR. The Worksheet is an internal AHCA document the investigator and administrator use to calculate the amount of a fine. However, AHCA did include in the FAR the final monetary sanction which AHCA calculated on the Worksheet ($35,543.54). Ms. Olmstead stated that AHCA considered Respondent’s failure to comply with Medicaid laws a “first offense.” Pursuant to rule 59G-9.070(7)(e), AHCA shall impose a $1,000 fine per claim found to be in violation for a first offense. Accordingly, based on the 58 claims reviewed for the audit, AHCA calculated a fine of $58,000.00. Thereafter, rule 59G-9.070(4)(a) instructs AHCA to limit the monetary sanction for a “first offense” violation of Medicaid laws under rule 59G-9.070(7)(e) to twenty percent of the amount of the overpayment. Thus, AHCA reduced the amount of the fine it seeks to impose on Respondent to $34,192.30. Finally, Ms. Olmstead testified that the FAR cited to several documents that AHCA distributes to guide and inform providers of the types of services that the Medicaid program covers and how to correctly bill Medicaid for these services. The documents applicable to this matter are: the 2007 Florida Medicaid Dental Services Coverages and Limitations Handbook; the 2008 Florida Medicaid Provider General Handbook; the 2011 Florida Medicaid Dental Services Coverages and Limitations Handbook; and the 2012 Florida Medicaid Provider General Handbook. Respondent testified on his own behalf. Respondent testified that this Medicaid audit was the first he has experienced. Prior to this matter, he has never been fined or sanctioned for any violations of the Medicaid program. Respondent also emphasized that this Medicaid audit did not show that he ever rendered sub-quality dental care to any of his patients. Respondent acknowledged that he currently receives the Medicaid Handbooks electronically. Respondent conceded that he is bound to adhere to the Medicaid guidelines in the Handbooks. Respondent offered the following explanations for the claims he submitted which resulted in the overpayments: Not Medically Necessary: Respondent understood that AHCA determined that his claims for occlusal x-rays were considered duplicative. Respondent explained that the occlusal x-rays reveal tooth decay and disease that panorex x-rays do not. Furthermore, Respondent’s use of the occlusal x-rays did not result in any harm to his patients. On the contrary, Respondent expressed that these x-rays only enhanced the services and treatment he provided to his patients. Behavioral Management (“BM”) Services: The BM fee compensates the provider for the effort and time it takes to prepare a patient for dental treatment or control the patient during treatment. In many cases, if Respondent cannot employ BM techniques, he cannot render effective dental treatment. Respondent charges approximately $35 for BM services. Insufficient Records: Respondent stated that the medical notes and records that his office maintains meet or exceed Florida standards. However, certain of his records apparently did not comply with Medicaid program requirements. Respondent further asserted that AHCA never alleged that he sought payment for services he never delivered or were not completed. Sabrina Blake is the office manager for Respondent’s dental practice. As part of her responsibilities, she handles billing practice inquiries. Regarding AHCA’s claim of insufficient records to support the BM charges, Ms. Blake explained that Respondent marked “BM” on the patients’ records to indicate that a behavior management technique was used. The error was that Respondent did not write out exactly what behavior management technique was used during the treatment. Medicaid rules required additional information or documentation. Therefore, while Respondent’s practice did not provide the requisite notation to support a Medicaid payment for BM charges, Respondent did actually provide the service claimed. Respondent stated that AHCA never provided him the opportunity to correct any alleged violations or billing errors. Respondent claims that none of the disallowed charges or medical services were submitted to intentionally obtain an unauthorized payment from the Medicaid program. AHCA did not produce evidence to contradict Respondent’s assertion. Prior to the final hearing, the parties entered into an agreement wherein Respondent agreed to repay to AHCA the full amount of the overpayment Respondent received from the Medicaid program.9/ Based on the overpayment, AHCA seeks to impose on Respondent an administrative fine of $34,192.30. Accordingly, the primary issue for the undersigned to consider is whether AHCA is authorized under the applicable law to impose on Respondent an administrative sanction in the form of a fine as a result of his violation of Medicaid laws, rules, or policy. Based on the evidence presented at the final hearing, AHCA proved by clear and convincing evidence that Respondent failed to comply with provisions of the Medicaid laws.10/ As detailed below, section 409.913 and rule 59G-9.070 authorize AHCA to impose a fine on Respondent in the amount of $34,192.30 based on his violations of the Medicaid program. Consequently, a fine of $34,192.30 should be assessed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order imposing an administrative fine of $34,192.30 for Respondent’s first offense of violating provisions of Medicaid provider publications adopted by AHCA rules, Florida or federal laws or regulations governing the Medicaid program, or the provider’s Medicaid agreement with AHCA. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 10th day of March, 2016.
The Issue Whether the Agency for Health Care Administration (Agency or Petitioner) is entitled to recover alleged Medicaid overpayments, administrative fines, and investigative, legal, and expert witness costs from Kenneth O. Harden, d/b/a Ken Care, Inc. (Respondent).1/
Findings Of Fact The Agency is the state agency responsible for administering the Florida Medicaid Program (Medicaid). Medicaid is a federally-funded state-administered program that provides health care services to certain qualified individuals. Respondent, Kenneth O. Harden, is an individual who was enrolled as a provider in both the Florida Medicaid Developmental Disabilities Waiver Program (DD Program) and the Florida Medicaid Family Supported Living Waiver Program (FSL Program) at all material times. By enrolling in the Medicaid programs, Respondent agreed to fully comply with all state and federal laws, policies, procedures, and handbooks pertaining to the Medicaid program. Respondent submitted bills to Medicaid while he was enrolled and these bills were processed and paid to Respondent through the Florida Medicaid automated payment system. Claimed services for which Respondent submitted bills and was paid by Medicaid include in-home support, personal care assistance, self-care/home management training, companion support, supported living coaching, and respite care. The Agency is authorized to recover Medicaid overpayments, as appropriate. § 409.913(1)(e), Fla. Stat.4/ One method the agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's Bureau of Medicaid Program Integrity (MPI). Providers are identified as potential candidates for auditing by a combination of referrals from field offices, data processing offices, and the Agency?s fraud and abuse hotline, and a random audit process.5/ In 2011, Agency Administrator Robi Olmstead identified Respondent as a potential audit candidate through a field office referral. She opened two cases on Respondent, one for each provider number, and assigned the cases to Kristen Koelle, then Program Analyst, for full audits. Ms. Koelle completed the first steps of the audit process according to established protocols. She reviewed Respondent?s provider information and billing to determine what types of services he provided, what types of claims he had submitted, and how much had been paid by Medicaid. In consultation with Ms. Olmstead, Ms. Koelle selected January 1, 2008, through June 30, 2010, as the audit period. During that audit period, Respondent submitted 10,578 claims for 47 recipients alleged to have received services from Respondent through the DD Program, and 2,485 claims for 22 recipients alleged to have received services from Respondent through the FSL Program. When the Agency audits a Medicaid provider for possible overpayments it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. The audit method used by the Agency depends on the characteristics of the provider and of the claims. For example, where a provider serves thousands of Medicaid recipients during the audit period, but the number of claims for each recipient is small, then the Agency may use a single-stage cluster sampling methodology. Under this approach, a random sample of recipients is selected, and then all claims are examined for the recipient sample group. Alternatively, where there are so many claims per recipient that it would be impractical to review all claims for each recipient or all claims for a sample group of recipients, a two-stage cluster sample methodology may be used. Under this approach, a random sample of recipients is selected, followed by a random selection of sample claims for the recipients in the sample. As a general target, the Agency considers samples of between 5 and 15 claims per recipient to be reasonable sample sizes for the second stage of two-stage cluster sampling. However, if a given recipient has fewer than 15 claims, a smaller number of claims for that recipient will be selected. Because of the high volume of claims generated by Respondent during the audit period in this case, Ms. Koelle determined with her supervisor that a two-stage cluster sampling methodology would be used. In other words, it was not feasible to review all 13,063 claims generated by the recipients Respondent claimed to have served during the audit period. Using a computer program to carry out the random sampling, the Agency's two-stage cluster sampling software selected a random sample of Respondent?s recipients under both the DD Program and the FSL Program during the audit period. The software generated a list of 30 recipients in the DD Program and 21 recipients in the FSL Program. It then selected a random sample of between 5 and 15 claims for each recipient from Respondent?s paid-claims data in the Agency?s data warehouse for the audit period. For the DD Program, 344 sample claims for the 30 sample recipients were randomly selected from among the 10,578 claims submitted by Respondent during the audit period. For the FSL Program, 256 sample claims for the 21 sample recipients were randomly selected from among the 2,485 claims submitted by Respondent during the audit period. Thereafter, Ms. Koelle prepared a “demand letter” for each of the two programs, informing Respondent that audits had been initiated and requesting that Respondent provide Medicaid- related records to substantiate billing records of the identified recipients, as well as the employment/personnel records or files for any of Respondent?s staff who provided services to Medicaid recipients during the audit period. The letters gave Respondent the standard 21-day period to submit the requested records. Ms. Olmstead reviewed and signed the letters and they were mailed, along with a Provider Questionnaire and Certification of Completeness of Records, to Respondent on July 26, 2011. After requesting and receiving a series of extensions, Respondent complied with the demand letters on September 13, 2011. Respondent delivered to the Agency Medicaid-related records and employee documents, along with the Provider Questionnaires and signed Certificates of Completeness, which certified the accuracy, truthfulness, and completeness of the records submitted. Persons who provide Medicaid services must meet certain minimum qualifications and obtain certain trainings, otherwise the person is deemed “ineligible” or “disqualified” and Medicaid cannot reimburse for services provided by such persons. All persons who provide services directly to Medicaid recipients must also pass a Level 2 background screening. Training and screening requirements for staff of Medicaid providers during the audit period are set forth in the Medicaid Handbook and the DD Handbook. Upon receiving records sent by Respondent in response to the Agency's July 26, 2011, letters, Ms. Koelle first reviewed Respondent's staff files to determine whether each staff member met the necessary requirements to provide Medicaid or Medicaid waiver services. Respondent produced staff files for 30 of the 39 staff members who provided services to randomly-selected recipients during the audit period. Of those 30 files, 16 contained no documentation of core competency training, eight had incomplete or no background screening documentation, one had a disqualifying background screening, and 22 lacked documentation of required training in HIV/AIDS, Infection Control, Zero Tolerance, or CPR during the audit period. In addition, 13 staff files revealed the staff member did not meet the experience or educational requirements for the position held. Next, Ms. Koelle reviewed the documentation Respondent submitted for each recipient against the 344 DD Program claims and 256 FLS program claims in the random sample and recorded her findings on worksheets along with her descriptions of any deficiencies or noted violations of Medicaid law. Ms. Koelle noted numerous violations of Medicaid laws, including, but not limited to, the following: of the 344 DD Program sample claims, 127 were submitted without any supporting documentation, 67 were submitted without a service log to document services provided to the recipient, 36 were submitted for companion services provided to recipients who were ineligible because they either lived in a licensed residential setting or were receiving in-home support services, and 28 were submitted for unauthorized activities provided to recipients. The most common violation, services provided by unauthorized staff, appeared in 243 claims submitted by Respondent. Of the 256 FSL Program sample claims, 50 were submitted without supporting documentation, and 208 were submitted for services provided by unauthorized staff. Ms. Koelle also documented a handful of cases in which the unauthorized staff provided services outside the scope of the recipient?s service plan or overbilled for the services provided. Ms. Koelle found no claims that were allowed under the Medicaid law and, therefore, no claims that merited adjustment. Ms. Koelle completed her review and entered all amounts that she found to be disallowed into the computer program. The program added the figures to find the overpayment amount for the samples, and then extrapolated the overpayment to the entire universe of recipients, according to an established statistical methodology, which yielded the total overpayment amount. The computer program generated a printout showing the exact overpayment amount for each of the claims in the samples, and the total overpayment extended to the population. The figures on the printouts correspond to the figures on the worksheets. Utilizing this methodology, Ms. Koelle determined that Respondent had been overpaid by an amount of $568,250.01 for services in the DD Program, and $162,700.08 for services in the FSL Waiver program. Thereafter, she prepared the Preliminary Audit Reports (Preliminary Audits), describing the methodology applied to determine overpayment and the deficiencies that led to that determination. She attached to the Preliminary Audits the printouts, copies of her worksheets, and a copy of the spreadsheets with staff findings. A provision in the Preliminary Audits explains that Respondent may submit additional documentation to support the sample claims, although such submission may be deemed evidence of previous non- compliance. Ms. Olmstead reviewed, approved, and signed the Preliminary Audits, which were mailed with attachments to Respondent on October 18, 2011. After receiving the Preliminary Audits, Respondent again submitted records and a written response in an effort to further support the sample claims. However, Ms. Koelle determined that the records submitted were duplicates of records previously submitted by Respondent and did not support any change in her findings from the Preliminary Audits. In preparation of the Final Audit Reports, Ms. Koelle, in consultation with Ms. Olmstead, reviewed Respondent's documentation and found that there was insufficient documentation to support any of the sample claims in either the DD Program or the FSL Program. The deficiencies included incomplete or missing staff files, lack of documentation of services, no service authorization, no service logs or service logs that did not meet Medicaid handbook requirements, no monthly summary, and indications that ineligible staff members were providing services. In some instances, the service provided was ineligible as it did not further the recipient?s goals or was an unauthorized activity (e.g., watching a movie). Ms. Koelle recorded her findings in a separate spreadsheet for each audit. The spreadsheets, organized by recipient number, contain the following information for each of the claims in the samples: date of service (DOS), procedure code, procedure description, unit of service (UOS), cost per unit of service, amount paid to Respondent, claim determination (Allow, Adjust, or Deny), review determination, whether there was a document deficiency (Doc. Def.) or a billing amount issue, and the amount of the overpayment for the claim (O/P). Next, Ms. Koelle entered the disallowed amounts into the computer program, which added the amounts together, found the overpayment amount for the sample, and extended the overpayment to the entire population of 10,578 claims in the DD Program and 2,485 claims in the FSL Program. Ultimately, Ms. Koelle prepared the Final Audit Reports (Final Audits), which Ms. Olmstead signed and sent to Respondent on November 21, 2011. Because the records submitted by Respondent in response to the Preliminary Audits did not change the findings, the Final Audits reported the same overpayment amounts as the Preliminary Audits: $568,250.01 in the DD Program and $162,700.08 in the FSL Program. The Final Audits notified Respondent of the total overpayment calculations, described the types of non-compliance found in the sample claims, and explained the methodology employed to select the claims for review and extend the sample overpayment to arrive at the total overpayment amount. The Final Audits also advised Respondent that the Agency intended to recover fines in the amount of $113,650.00 for violations of requirements in the DD Program and $32,540.02 for violations of requirements of the FSL Program. Additionally, the Agency sought a total of $1,437.38 for costs of the two audits. Copies of the worksheets, as well as the two spreadsheets detailing the staff review findings, were attached. Respondent disputed the Final Audits and the Agency referred the matter to the Division. In preparation for the final hearing, the Agency consulted with Dr. Fred W. Huffer, a professor in the Department of Statistics at Florida State University with a B.S. in mathematics from the Massachusetts Institute of Technology and a Ph.D. in statistics from Stanford University. He has taught and researched statistics for more than 30 years at various institutions of higher learning. Dr. Huffer reviewed the Agency?s Preliminary and Final Audit findings and found one error in the analysis. In each audit, one randomly-selected recipient had submitted only one claim during the audit period. According to the Agency?s overpayment calculation methodology, the second-stage random sample may only be taken from those recipients with two or more claims during the audit period. Therefore, the Agency?s overpayment calculation included one incorrect variable. Dr. Huffer adjusted the formula and recalculated the overpayment with the correct variables for each audit. The result was a modest change to the final overpayment amounts -- a reduction of $8,368.36 for the DD Program and $818.44 for the FSL Program. The final adjusted total overpayments were $559,881.65 for the DD Program and $161,881.64 for the FSL Program. Respondent offered no witnesses and introduced no evidence at the final hearing. Instead of presenting contradictory expert testimony, Respondent attempted to undermine Dr. Huffer's opinions through cross-examination and argument. On cross-examination, Respondent attempted to challenge the reliability of the Agency?s sampling methodology and Dr. Huffer?s calculations. Respondent inquired as to the “authentication” of Dr. Huffer?s results and the requirements for determining when Dr. Huffer?s calculations were final, and insinuated that Dr. Huffer may have been biased because he has consulted with the Agency since 2004. Respondent was not effective in this regard. The methodology and description of two-stage cluster sampling were explained and confirmed at the final hearing by Dr. Huffer, who was accepted as an expert in statistical analysis and methodologies. In addition, the methodology comports with established law. See § 409.913, et seq., Fla. Stat.; Ag. for Health Care Admin v. Custom Mobility, Inc., 995 So. 2d 984 (Fla. 1st DCA 2008), cert. denied, 3 So. 3d 1246 (Fla. 2009). Dr. Huffer was familiar with the case at hand and with the science of random sampling of populations and the analysis of samples, including extension of results to the total population. Dr. Huffer analyzed the sampling method utilized by the Agency in this case with a program he personally developed for that purpose. Dr. Huffer repeated random simulation that recreated the audit circumstances many thousands of times, and found them to be accurate in this case. The software utilized by the Agency determined the amount of overpayments at a 95 percent confidence level. As explained by Dr. Huffer, if the entire procedure is repeated “many times, 95 percent of the time this value that they get to at the end would be less than the true amount” of the overpayment. In other words, the amount the Agency has asked Respondent to repay is most likely lower than the actual overpayment. In sum, Dr. Huffer credibly explained that the Agency?s cluster sampling method is appropriate and that it comports with the technical meaning of random sample and generally accepted statistical methods. Moreover, Dr. Huffer verified the adjusted overpayment amount through professionally accepted methodology. Dr. Huffer's opinions that the audits in this case utilized a correct and reasonable application of two-stage cluster sampling and that the sampling method used in this case was reasonable and comported with generally accepted statistical methods are accepted as credible and accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Respondent, Kenneth O. Harden, d/b/a Ken Care, Inc., to: Repay the sum of $559,881.65 for claims in the Medicaid Development Disability Waiver Program that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; Repay the sum of $161,881.64 as recoupment of claims in the Medicaid Family and Supported Living Waiver Program which did not comply with the requirements of Medicaid laws, rules, and provider handbooks; Pay interest on the sums of $559,881.65 and $161,881.64 at the rate of 10 percent (10%) per annum from the date of the overpayment determination; Pay a fine of $6,000 per agency action (for a total of $12,000) for violations of the requirements of Medicaid laws, rules, and provider handbooks; and Pay allowable costs of $3,405.71, pursuant to section 509.913(23), Florida Statutes. DONE AND ENTERED this 20th day of March, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 20th day of March, 2013.
The Issue Whether Respondent was overpaid for Medicaid claims submitted during the audit period January 1, 2004, through December 31, 2004, and, if so, what amount Respondent is obligated to reimburse Petitioner; and whether sanctions and costs should be assessed against Respondent.
Findings Of Fact This case involves a Medicaid audit of claims paid by AHCA to Respondent for dates of service from January 1, 2004, through December 31, 2004. The audit in this case evaluated 2,631 paid claims on behalf of 17 Medicaid recipients. During the audit period, Respondent was an enrolled Medicaid waiver provider and had a valid Medicaid Provider Agreement with AHCA. Respondent was authorized to provide home and community-based services to Medicaid waiver recipients. Paragraph 3 of the Medicaid Provider Agreement states that "the provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks, and Statements of Policy as they may be amended from time to time."1/ Among other duties, Petitioner investigates and audits Medicaid providers in an effort to identify and recoup overpayments made to providers for services rendered to Medicaid recipients. Petitioner is also empowered to impose sanctions and fines against offending providers. Petitioner, when it identifies overpayment, fraud, or abuse, is charged with taking affirmative steps to recoup any overpayments and can, as appropriate, impose fines, sanctions, and corrective actions plans on the offending provider. Pursuant to what is commonly referred to as the "pay- and-chase" system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner determines that the provider was paid for services rendered which were not in compliance with Medicaid requirements, then Petitioner seeks reimbursement from the provider. By correspondence dated December 8 and December 29, 2006, Petitioner contacted Respondent and requested records related to claims billed to Medicaid by Respondent. Respondent provided documents in response to Petitioner's requests. After considering the information provided by Respondent, Petitioner, on February 27, 2007, issued a Preliminary Audit Report and advised therein that it was believed that Petitioner had overpaid Respondent in the amount of $364,973.45. In response to the Preliminary Audit Report, Respondent submitted additional documentation that it desired for Petitioner to consider. On May 17, 2007, Petitioner, after having reviewed the additional documentation submitted by Respondent, issued a FAR and noted therein that Petitioner had determined that Respondent was overpaid by Medicaid in the amount of $259,033.49. In this same correspondence Petitioner notified Respondent that Petitioner was seeking to impose a $2,000.00 fine against Respondent; would be requiring Respondent to adhere to a corrective action plan in the form of a Provider Acknowledgment Statement; and would be assessing investigative, legal, and expert witness costs against Respondent. In response to Petitioner's correspondence of May 17, 2007, Respondent submitted to Petitioner additional documentation which resulted in the overpayment amount being adjusted downward to $212,683.06. The FAR is supported by Petitioner's staff files, testimonial evidence, spreadsheets related to overpayment determinations, and documentation submitted by Respondent. Collectively, this supporting documentation constitutes Petitioner's "work papers" within the meaning of section 409.913(22), Florida Statutes (2003).2/ Petitioner's work papers establish that Respondent was overpaid $212,683.06. Petitioner's work papers show the following with respect to the 17 Medicaid recipients whose paid claims were audited: For Medicaid recipient no. 1, Petitioner audited 9 claims. For each claim, Petitioner determined that Respondent billed and erroneously received payment for services provided to the recipient that were not authorized by Medicaid; For Medicaid recipient no. 2, Petitioner audited 388 claims. Of the claims reviewed, six were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to produce sufficient supporting documentation related to staff eligibility to provide the services for which Medicaid was billed. For other claims, there were unexplained alterations made by Respondent to certain time entries contained in the Medicaid services log book; For Medicaid recipient no. 3, Petitioner audited 110 claims. Of the claims reviewed, only one claim resulted in overpayment due to Respondent's failure to provide sufficient supporting documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 4, Petitioner audited 51 claims. Of the claims reviewed, 23 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because there was insufficient documentation related to the eligibility of Respondent's staff to provide the services for which Medicaid was billed; For Medicaid recipient no. 5, Petitioner audited five claims. Of the claims reviewed, two were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 6, Petitioner audited 32 claims. Each of the 32 claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 7, Petitioner audited 279 claims. Of the claims reviewed, 94 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 8, Petitioner audited 155 claims. Of the claims reviewed, 95 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 9, Petitioner audited 239 claims. Of the claims reviewed, 82 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 10, Petitioner audited 82 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. Respondent was overpaid for these claims because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 11, Petitioner audited five claims. None of the claims reviewed were found to be in compliance with Medicaid standards. This Medicaid recipient was authorized to receive services through December 31, 2003. For each claim, Respondent billed, and was paid for, services that were provided after December 31, 2003. This resulted in an overpayment to Respondent; For Medicaid recipient no. 12, Petitioner audited 113 claims. Of the claims reviewed, 79 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 13, Petitioner audited 20 claims. Of the claims reviewed, 15 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to follow the recipient's support plan goals and double-billed Medicaid for services that were provided to the recipient; For Medicaid recipient no. 14, Petitioner audited 343 claims. Of the claims reviewed, 275 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 15, Petitioner audited 258 claims. Each of the 258 claims was found to be in compliance with Medicaid standards. For Medicaid recipient no. 16, Petitioner reviewed 222 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. The reviewed claims showed overpayment to Respondent because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, the services were provided to the Medicaid recipient by an unqualified individual, and Respondent overbilled for certain services provided to this Medicaid recipient; and For Medicaid recipient no. 17, Petitioner reviewed 320 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. Respondent was overpaid for these claims because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient. On November 30, 2011, Petitioner rested its case-in- chief in the instant matter. At Respondent's request, a third day was authorized for the presentation of evidence so that Respondent could issue subpoenas and offer evidence to rebut Petitioner's claim as appropriate. So as to allow Respondent, who appeared in this matter pro-se, adequate time to prepare its defense, the third day of final hearing was noticed for 9:30 a.m., on February 20, 2012. At 9:51 a.m., on February 20, 2012, the final hearing was announced as being in session. Respondent did not attend the final hearing on February 20, 2012, and has offered no explanation for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order finding that Respondent, ARC Consulting Home Health Agency, Inc., by and through Jasmine J. Allison, Administrator, owes $212,683.06 to Petitioner as an overpayment, plus interest. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 April, 2012.
The Issue Whether the petitions for formal administrative hearing filed by Petitioner in these consolidated cases should be dismissed as contended by Respondent? If not, whether Petitioner should be granted the relief sought in these petitions?
Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Petitioner is a Florida Medicaid provider. Its provider number is 027856400. Paragraph 8 of the provider agreement that it entered into with the Department provides that it and "the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations." The Department is the state agency that administers the Florida Medicaid program. The Department's Medicaid Program Integrity Unit audits and investigates claims for reimbursement submitted by Florida Medicaid providers. John M. Whiddon is Chief of the Unit. Ellen Williams is one of his subordinates. In November, 1991, Whiddon received a letter from the Director of the Auditor General's Fraud Control Unit. The body of the letter read as follows: The Florida Medicaid Fraud Control Unit is currently in the process of conducting a criminal investigation of [Petitioner]. Our investigation has established that there is a basis for criminal prosecution for the billing of services not rendered and for providing treatment that was not prescribed (there were no treatment plans). As of today's date the provider's YTD earnings are in excess of $444,000. I believe that a review of the claims submitted the last 90-120 days will indicate a high volume of the claims being false and that you may want to proceed administratively to stop the improper claims. Shortly after receiving this letter, Whiddon ordered that each of Petitioner's claims be subjected to prepayment review. On February 17, 1992, Petitioner filed with the Department his petition requesting an award of "damages in excess of $10,000.00." The petition contains four counts. Count I of the petition alleges that "[i]n refusing to reimburse [Petitioner] for services rendered, [the Department] has violated Section 409.266, et seq., Fla. Stat." Count II of the petition alleges that "[i]n refusing to reimburse [Petitioner] for services rendered and failing to notify [Petitioner] of [the Department's] intent to withhold any payment due [Petitioner], [the Department] has violated Rule 10C-7.060, et seq., Fla. [Admin. Code]." Count III of the petition alleges that "[b]y withholding monies due and owing to [Petitioner] for services rendered without prior notice to [Petitioner], in violation of its own rules and regulations, and failing to provide for any procedure for a post-deprivation hearing, [the Department] violated [Petitioner's] due process rights." Count IV of the petition alleges that "[the Department] has breached its agreement to reimburse [Petitioner] for services rendered." Each of the foregoing counts contained the following prayer for relief: WHEREFORE, Our Lady requests this Court enter judgment against HRS for compensatory damages, attorneys' fees, costs and interest and such other relief as the Court deems just and proper. On March 7, 1992, Petitioner received a letter from Whiddon, dated January 28, 1992. The body of the letter read in part as follows: In accordance with 42 CFR 455.23, the Department of Health and Rehabilitative Services is withholding payments for Medicaid claims submitted by Our Lady Health Care Services. Based on our review of a sample of your home health records for the period February 1, 1991-November 30, 1991, we find evidence of willful misrepresentation on your part. Your home health records revealed that: You billed for services for which there was not a valid treatment plan, and You billed for nursing and aide services that were not documented as having been provided. As stated in 42 CFR 455.23, this action is temporary and will not continue after: the department determines that there is insufficient evidence of willful misrepresentation by the provider; or legal proceedings related to the provider's alleged willful misrepresentation are completed. In accordance with 42 CFR 455.23, you have the right to submit written evidence for consideration by the department. If you have such evidence, please send it to Ms. Ellen D. Williams, 2002 Old St. Augustine Road, Suite B-10, Tallahassee, Florida 32301. Pursuant to Section 120.57, Florida Statutes (F.S.) and Rule Section 10- 2.056, Florida Administrative Code (F.A.C.) you may request either a formal or informal hearing on the department's action. Your request for such hearing must be received by the department within 30 days of the date you received this letter. A request for informal hearing must be in writing and a request for formal hearing must be in the form of a petition in compliance with Rule Section 28-5.201, F.A.C. Either request must be substantive and state clearly the specific actions to which you object and why you object to them. . . . The purpose of either a formal or informal hearing is to determine whether the action taken in this letter is within the authority of the Department of Health and Rehabilitative Services and in accordance with the department's applicable rules and policies. . . . If a hearing request is not received within 30 days from the date of receipt of this letter, the right to such hearing is waived. On March 19, 1992, Petitioner filed a petition with the Department requesting a formal hearing on the matter. On June 4, 1992, Whiddon sent Petitioner a letter. The body of the letter read as follows: Please be advised that this office has concluded its investigation of Our Lady Health Services, pursuant to 42 CFR 455.23. Based upon this investigation, your claims are now pended for medical review pursuant to Section 409.913(2), Florida Statutes. Please forward copies of all supporting documentation for those claims which are now in pend status. Attached hereto are the claims which are the subject of this review. The supporting documentation must be received by this office within 30 days of receipt of this letter. If you have any questions, please contact Ms. Ellen Williams at (904) 488- 3588. As of June 8, 1992, the date of the final hearing in these cases, the Department had not made any official determination regarding overpayments made to Petitioner, nor had it decided to pay or deny the pended claims. These matters were still under review and investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the petitions filed by Petitioner in these consolidated cases. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4 day of August, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4 day August, 1992.
The Issue Whether Petitioner is liable to Respondent for Medicaid overpayments, fines, interests, and costs, pursuant to the Agency’s Final Agency Audit Letter of May 2, 2001 (hereinafter FAAL), in the amount of $194,526.97.
Findings Of Fact The Parties Petitioner Petitioner, Lifeline Pharmacy, is a retail pharmacy formed in early 2000. Martin Calano is the owner and president of Lifeline. It is co-owned by his wife, Barbara Calano, who serves as the treasurer; Frank Hernandez, who oversees the pharmacy operations; and Imada Hernandez. None of the pharmacy's owners has an educational background in pharmacy or Medicaid regulations. Dr. William Bebell is the sole pharmacist employed by Lifeline Pharmacy. He is responsible for managing the prescriptions and has been involved with the practice of pharmacy for 25 years. Respondent Respondent, Agency for Health Care Administration (AHCA), is the state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. As one of its duties, Respondent must recover overpayments paid to providers by the Medicaid program. The term "overpayment" is statutorily defined to mean "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." See Section 409.913(1)(d), Florida Statutes. Petitioner participated in the Medicaid program, under contract with Respondent, from December 17, 1999 through April 21, 2000, and was issued provider number 021780800. In 1999, Respondent hired Heritage Information Systems ("Heritage") to perform audits of various Medicaid providers. Louis Elie, an auditor employed with Heritage since 1999, is responsible for auditing retail home infusion pharmacies. He is a pharmacist with a degree from Howard University, registered in the State of Virginia, and has practiced for over ten years. He has worked in a retail pharmacy for five years coordinating home infusion therapies, and has worked at Medical College of Virginia, a teaching institution that has a community pharmacy embedded in a home infusion pharmacy that services the community. William Thomas is an investigator for Heritage and serves as the project manager for the Florida Medicaid audits. He has a B.A. in economics, a B.S. in pharmacy, and is a licensed pharmacist in Florida. Kelly Rubin is employed by AHCA within the Medicaid Program Integrity (MPI) office as a pharmacy investigator. The MPI office audits health care providers who participate in the Medicaid program and reviews the provider's compliance with applicable statutes, rules, and policies regarding billing Medicaid for services rendered. Ms. Rubin has been a licensed Florida pharmacist for approximately nine years, and was a pharmacy tech for approximately eight years. She has experience in hospital and retail pharmacy, and has served as the director of a home infusion pharmacy. As an investigator employed by Respondent, Ms. Rubin reviewed Petitioner's pharmacy records as well as the audit performed by Heritage. Upon review of the records and the Heritage audit, Ms. Rubin and the MPI office calculated the amount of Petitioner's overpayment and issued the FAAL with supporting documentation. The Audit During the four-month time period reviewed in the audit, Petitioner submitted 744 prescription claims to Medicaid totaling $445,713.19 and received payment for each of them. Respondent, acting as the state's enforcement arm of the Medicaid program, chose to audit 329 of Petitioner's 744 claims. Specifically, Respondent selected 128 of the 744 claims to be audited through a judgmental sample analysis and 201 claims from the remaining 616 claims to be audited through a random sample analysis. On May 15, 2000, Respondent, and its contract auditor Heritage, arrived unannounced at Petitioner's place of business to conduct the in-depth audit. The audit team was met by Petitioner's sole pharmacist, Dr. Bebell, who was responsible for managing the prescription records. Upon their arrival, Dr. Bebell was provided a list of 329 provider claim prescription numbers selected by Respondent for review. Although the audit team did not specify the precise records it needed, the auditors instructed Dr. Bebell to provide "all" records pertaining to the selected prescriptions, purportedly filled by the pharmacy during the December 17, 1999 through April 21, 2000, audit period. In response, Dr. Bebell provided the auditors with the prescription records, invoice records, and financial records of the specific prescriptions requested. It is apparent, however, that at some point during the first day of the audit, Petitioner retrieved some records back from the audit team prior to review. During the audit, the team reviewed each record provided by Dr. Bebell and occasionally requested Dr. Bebell to produce additional prescription records for a given claim. Any additional records provided by the pharmacist were considered by the auditors. Although the communication between the parties appeared to be strained, the auditors remained at Petitioner's place of business for four days and interacted with Dr. Bebell on a regular basis. At the conclusion of the audit on the fourth day, the auditors departed the pharmacy. A formal exit conference, involving Petitioner's counsel, was not held. Audit findings Judgmental sample As indicated, the auditors selected 128 of the 744 claims for review through a judgmental sample analysis. Using this technique, the auditors reviewed each claim and identified discrepancies with the rules, laws, and policies governing both the Medicaid Program and the practice of pharmacy, and assessed a monetary sanction for each discrepancy. In the judgmental sample, the auditors cited 81 alleged discrepancies that were predominately attributed to unauthorized refills ("UR"), original hard-copy prescriptions that could not be found ("CF"), and oral prescriptions that were not properly documented ("MISC"). The monetary sanctions totaled $172,410.84. Random sample The audit team also utilized a mutually exclusive random sample to review claims. The random sample consisted of 201 claims selected at random from the remaining population of 616 Medicaid provider claims. In the random sample, the auditors again looked at each claim and identified discrepancies with the rules, laws, and policies governing both the Medicaid Program and the practice of pharmacy. However, in this review, the auditors also calculated a claim discrepancy average and multiplied it by the remaining population of 616 claims. During the random sample review, Respondent discovered 58 discrepancies that averaged $51.546661 per claim. Thereafter, the random sample average was extended to the remaining population of claims in the judgmental sample and totaled $31,752.71. For added confidence in the extrapolated findings and to mitigate any "over penalizing," Respondent calculated the 95 percent one-sided lower confidence limit of the extrapolated random sample and reduced the applied discrepancy amount to $22,116.13. The random sample and judgmental sample discrepancy amount were aggregated and a monetary sanction in the amount of $194,526.97 was assessed against Petitioner for the overpayment. Respondent's case At the administrative hearing, during Respondent's case-in-chief, counsel for Respondent introduced an exhaustive list of 35 exhibits relating to the audit, presented the testimony of Mr. Thomas, Mr. Elie, and Ms. Rubin, and explained each discrepancy documented during the audit. Respondent presented evidence identifying the 152 discrepancies identified in the audit report. Specifically, the auditors cited: 23 "CF" discrepancies where the original hard-copy prescription could not be found on file during the audit; 50 "UR" discrepancies where the number of refills billed and paid to the pharmacy exceeded the number authorized by the prescribing physician; 4 "OBQ" discrepancies where the quantity paid exceeded the quantity authorized by the prescribing physician; 1 "EQL" discrepancy where the quantity paid exceeds the limit set by the Medicaid Plan; 6 "DS" discrepancies where the day's supply value submitted by the pharmacy was not consistent with the quantity and directions prescribed; 1 "WDB" discrepancy where the pharmacy submitted a claim for medication that was different from the medication dispensed; 1 "NDEA" discrepancy where the hard-copy prescription did not contain a DEA number as required; and 64 "MISC" discrepancies where the telephone prescription orders were not reduced to writing. Petitioner's Case Following Respondent's case-in-chief, counsel for Petitioner introduced seven exhibits; presented the testimony of four witnesses including Mr. and Mrs. Calano, Mr. Hernandez and Dr. Bebell; and strenuously attacked the actions, motivations and findings of Respondent. Specifically, Petitioner alleged that the 23 documented "CF" discrepancies, relating to missing prescriptions, actually existed and were available at the time of the audit. Petitioner argued that the missing prescriptions were subsequently "found," introduced into evidence at hearing, available to Respondent, and entitled them to relief. Petitioner's assertions and the newly found prescriptions are highly suspect and summarily rejected. Respondent proved the 23 "CF" discrepancies by a preponderance of the evidence. Petitioner also argued that the 50 "UR" discrepancies, representing unauthorized refills, identified in the audit report, were in fact authorized. Specifically, Petitioner claimed that the abbreviation "IV," written in Rx numbers 50619, 50622, 50623, 50631, 50638, and 50641, and cited for 20 discrepancies, stood for "4" refills and not the term "intravenous." Dr. Bebell testified under oath that he utilized the abbreviation in each of the 20 discrepancies to reflect the numeral "4" and not the term "intravenous." Petitioner's assertion regarding these 20 cited "UR" discrepancies are not accepted for several reasons. First, Respondent demonstrated that the excessive number of refills would have been inappropriate therapy. Second, Petitioner's position does not comport with standard pharmacy practice. Third, Petitioner's assertion and Dr. Bebell's testimony are directly inconsistent with Dr. Bebell's routine use of standard numerals within his written prescriptions. In fact, there appear to be no Roman numerals within any of his prescriptions. And finally, accepting the argument that "IV" actually meant "4" creates unreasonable inconsistencies and ambiguities within Dr. Bebell's written prescriptions. For these reasons, Petitioner's assertion is without credit. Respondent proved the 20 cited "UR" discrepancies by a preponderance of the evidence. With respect to the 30 remaining "UR" discrepancies relating to Rx numbers 50624, 50631, 50632, 50633, 50634, 50635, 50723, 50280, and 50330, Petitioner demonstrated that the prescriptions were valid, often included both the prescribing doctor and pharmacist's signature, occasionally were not billed for refill, and in fact were authorized. Respondent failed to prove the 30 above-cited "UR" discrepancies by a preponderance of the evidence. Petitioner also contested three of the four "OBQ" discrepancies relating to the quantity paid exceeding the quantity authorized, and specifically conceded to Rx number 50505. Petitioner presented credible evidence that Petitioner properly received Medicaid payment for the precise medicine prescribed by Dr. Contreras in Rx numbers 50331 and 50463, as well as the precise medication (30 tablets plus one refill) prescribed by Dr. Folkerth in Rx number 50548. Respondent proved, by a preponderance of the evidence, the single "OBQ" discrepancy conceded by Petitioner in Rx 50505. Petitioner argued that Rx number 50678, cited as a discrepancy due to the quantity paid exceeded the Medicaid Plan, was proper. Respondent proved the single "EQL" discrepancy by a preponderance of the evidence. Petitioner contested the six "DS" discrepancies identified in the audit report relating to Rx numbers 50505, 50331, 50451, 50463, 50548, and 50678, and argued that the day's supply value submitted by the pharmacy was consistent with the quantity and directions provided by the physician. Respondent failed to prove the discrepancies related to Rx numbers 50331, 50463, and 50548, and applied no penalty to Rx number 50451. Respondent proved the two "DS" discrepancies relating to Rx numbers 50505 and 50678 by a preponderance of the evidence. Respondent proved, by a preponderance of the evidence, the single "WDB" discrepancy relating to Rx number 50308. Respondent proved, by a preponderance of the evidence, the single "NDEA" discrepancy relating to Rx number 50740. And finally, counsel for Petitioner strongly contested the 64 "MISC" discrepancies identified in the audit report that allege Dr. Bebell failed to properly reduce telephone prescriptions to writing. Petitioner suggested that, at best, the "MISC" discrepancies were "technical" and should not be assessed. While the evidence proves that Petitioner often received its prescriptions via physician telephone orders, it is clear that these records were not received, recorded, managed and maintained in the method provided by law. In fact, at the time of the audit, Petitioner indicated that they were in the initial stages of setting up the pharmacy and had problems with paperwork. Dr. Bebell admitted that he was unfamiliar with the computer system, kept prescription records in patient charts rather than in the computer, and did not understand many of the regulations governing prescription records including telephone orders. He testified that "according to regulation either myself or one of my staff members reduce the verbal order . . . to writing immediately," notwithstanding the fact that Dr. Bebell is the only registered pharmacist on staff and the only individual legally permitted to accept and sign the prescription. While Petitioner further argues that the telephone orders relating to the 64 "MISC" discrepancies were properly reduced to writing and later signed by the pharmacist shortly after taking the order, the evidence demonstrates otherwise. Scanned images of Petitioner's prescription records, taken at the time of the audit, clearly demonstrate that telephone prescription orders were improperly received, signed and recorded. Furthermore, Dr. Bebell admitted that he occasionally did not sign each telephone order prescription as required by law. Petitioner further asserts that the scanned images were only draft documents and the newly provided, signed prescription documents are the actual prescriptions. Petitioner's new evidence relating to the 64 "MISC" discrepancies is suspect and not accepted. The 64 "MISC" discrepancies identified verbal orders allegedly taken by a registered pharmacist and not signed by that pharmacist. Standard pharmacy practice, as well as state and federal law, require pharmacists to reduce telephone prescription orders to writing immediately upon receipt. Respondent proved, by a preponderance of the evidence, all of the 64 "MISC" discrepancies including Rx numbers 563, 565, 602, 639, 723, 821, 829, 131, 133, 271, 275, 276, 278, 279, 280, 281, 282, 283, 284, 286, 287, 296, 306, 311, 330, 341, 344, 365, 389, 390, 411, 412, 475, 477, 478, 479, 529, 537, 538, 539, 552, 556, 557, 558, 564, 676, 704, 705, 706, 708, 709, 713, 714, 716, 740, 779, and 885. A total recovery for each of those claims to Medicaid is appropriate.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that: Respondent shall recalculate the monetary sanctions, excluding the 30 "UR," three "OBQ," and four "DS" discrepancies identified in the Findings of Fact, utilizing the same statistical formula. Petitioner shall repay Respondent the recalculated monetary sanction, plus interest derived from April 6, 2001 through December 1, 2002, at the statutory rate, within a reasonable period of time agreed to by both parties. Petitioner shall not be obligated to pay any other costs or fees related to this matter. DONE AND ENTERED this 8th day of March, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 8th day of March, 2002. COPIES FURNISHED: Kelly A. Bennett, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308-5403 Craig A. Brand, Esquire Brand & Fernandez, P.A. 2 Northeast 40th Street Suite 403 Miami, Florida 33137 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue for determination is whether Respondent is liable to Petitioner for the principal sum of $2,284.13, which equals the amount that the Florida Medicaid Program paid Respondent for psychiatric services provided between January 2, 2002, and June 30, 2006, to patients who, at the time of treatment, were residents of custodial care facilities.
Findings Of Fact Petitioner Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Respondent Womesh C. Sahadeo, M.D. ("Sahadeo") is a psychiatrist. At all relevant times, Dr. Sahadeo was a Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid beneficiaries. Exercising its statutory authority to oversee the integrity of Medicaid, the Agency in 2006 performed a "generalized analysis" of claims involving psychiatric services rendered to patients who, at the time of treatment, had been residing in nursing homes, assisted living facilities, or other custodial care facilities. In a generalized analysis, claims within a category of services are reviewed to determine whether each claim meets a particular condition of coverage or falls within a specific exclusion. The conditions and limitations of interest to AHCA in this instance were (a) the requirement that, to be compensable, psychiatric services must be provided in a hospital or physician's office and (b) the corresponding exclusion from coverage of claims for psychiatric services rendered in any other place, e.g. nursing homes or other custodial care facilities. During the period from January 2, 2002 to June 30, 2006 (the "Audit Period"), Dr. Sahadeo had submitted a number of claims seeking reimbursement for psychiatric services provided to seventeen patients who were residents of group homes or other custodial care facilities. Medicaid had paid these claims, and, as a result, Dr. Sahadeo had received payments totaling $2,284.13. Being within the scope of the generalized analysis under way in 2006, these claims came to AHCA's attention. By letter dated November 9, 2006, the Agency informed Dr. Sahadeo that the aforementioned claims would not have been compensable if the patients in question had been seen in their respective residential facilities (as opposed to the doctor's office or a hospital). AHCA demanded that Dr. Sahadeo submit records showing that the psychiatric services at issue had been rendered in an eligible setting, to confirm that the subject claims were within Medicaid coverage. The deadline for compliance with this demand was 15 days after receipt of the letter. Dr. Sahadeo did not respond to the letter of November 9, 2006. Consequently, on December 20, 2006, the Agency issued a Preliminary Audit Report, which notified Dr. Sahadeo that, because he had failed to produce records documenting the place(s) of service as requested, each of the claims under review was now deemed to have resulted in an overpayment. Dr. Sahadeo was given the choice of either remitting payment of $2,284.13 or submitting documentation demonstrating that some or all of the claims were properly paid. The deadline for furnishing additional documentation was 15 days after receipt of the report. Dr. Sahadeo did not respond to the Preliminary Audit Report. Consequently, on February 20, 2007, the Agency issued a Final Audit Report. The Final Audit Report echoed the Preliminary Audit Report in regard to the place-of-service issue. This time, however, the Agency added allegations accusing Dr. Sahadeo of violating Medicaid's record keeping requirements, and it gave notice of its intent to impose a $500 fine for his failure to furnish Medicaid related records on demand. According to AHCA, the total amount due from Dr. Sahadeo was now $2,784.13. Dr. Sahadeo timely requested an administrative hearing, giving rise to this case. Before the final hearing, Dr. Sahadeo produced some medical records underlying some of the claims in question. None of these medical records, however, clearly and unambiguously documents the place of service, the critical fact which at all times during this audit has been the focus of AHCA's interest and concern. At hearing, Dr. Sahadeo presented persuasive evidence (his testimony and that of his office manager, Sonya Robinson) that the psychiatric services behind the claims at issue were, in fact, rendered in his office, and not at the respective residences of the patients. The undersigned finds this to be the case. But the evidence also established——and the undersigned finds——that, in addition to medical records, certain professional or business records were created in connection with each of the subject claims, records which, if retained, would have shown that the patients had come to Dr. Sahadeo's office for treatment. One set of such documents comprised the "sign in sheets" that patients signed upon arrival at the doctor's office. Located at the receptionist's desk, the sign in sheet was a paper on which each patient would write his name, time of arrival, and appointment time. Although a sign in sheet was (or should have been) inscribed by every patient each time he was seen in the doctor's office, Dr. Sahadeo either did not keep copies of these documents or was unable, for other reasons, to make them available for inspection by AHCA. The other set of documents which would have shown that the patients of interest had come to Dr. Sahadeo's office for treatment consisted of the "receipts" that the doctor would sign to confirm that a caretaker had transported the patient from the group home or other custodial facility to the doctor's office for his appointment. During the Audit Period, it was Dr. Sahadeo's practice to sign the receipt and return the paper to the caretaker or driver without keeping a copy for his own records. Consequently, Dr. Sahadeo was unable to make these documents available for inspection by AHCA. Dr. Sahadeo did not satisfy his continuing obligation to retain all of the records relating to the services that he had provided to the patients whose claims AHCA is disputing. Yet, when AHCA paid the Medicaid claims at issue, it did so believing——and in reliance upon the assumption——that Dr. Sahadeo was fulfilling his affirmative duty to provide the underlying services in accordance with all the applicable policies, rules, and laws, including the requirement that records relating to a Medicaid claim be kept for five years. AHCA was mistaken in this regard. As a result of the Agency's mistaken assumption that Dr. Sahadeo was complying with the record keeping requirements, Dr. Sahadeo received from Medicaid a total of $2,284.13 in payments that were not authorized to be paid. This grand total of $2,284.13 constitutes an overpayment that Dr. Sahadeo must return to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Dr. Sahadeo to repay the Agency the principal amount of $2,284.13, together with an administrative fine of $500. DONE AND ENTERED this 20th day of November, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of November, 2007.
The Issue The issue in this case is the amount of the Petitioners' personal injury settlement required to be paid to the Agency for Health Care Administration (AHCA) to satisfy its Medicaid lien under section 409.910, Florida Statutes (2013).
Findings Of Fact The Petitioners are the grandparents and legal guardians of Taya Rose Savasuk-Maldonado, who is 11 years old. On October 2, 2010, Taya and six family members were involved in a horrific car crash. The driver of another car (the tortfeasor) failed to stop at an intersection and slammed into the family van, which rolled over, ejecting three passengers, including Taya and her great-grandparents. The great- grandparents died on the pavement next to Taya, and Taya suffered severe injuries, including a skull fracture, pancreatitis, bleeding in her abdomen, and severe road rash that required multiple skin graft surgeries and dressing changes so painful that anesthesia was required. Taya has significant, permanent scarring, which has left her self-conscious and unwilling to wear any clothing that exposes her scars, including bathing suits and some shorts. Taya's emotional injuries include nightmares and grief over the loss of both great-grandparents. Other family members also suffered injuries. Taya required emergency and subsequent medical care that has totaled $257,567 to date. It is not clear from the evidence how much, if any, of that total was reduced when providers accepted Medicaid. Future medical expenses are anticipated, but there was no evidence as to the amount of future medical expenses. The tortfeasor had a $100,000/$300,000 Hartford insurance liability policy on the car he was driving at the time of the accident. Hartford agreed to pay the policy limits. The injured family members agreed that $200,000 of the policy limits should be paid to Taya. On October 14, 2013, Hartford and the Petitioners agreed that the Petitioners would release Hartford, the tortfeasor and his wife (the other owner of the car) in return for payment of $200,000 to be held in trust by the Petitioners' attorneys for distribution as follows: $60,000 to be paid to the Prudential Assigned Settlement Services Corporation to fund future payments to Taya beginning in year 2020; up to $84,095 to lienholders in amounts to be determined; and the balance to the Petitioners' attorneys. The parties to that agreement, which did not include AHCA, agreed that $51,513 of the $200,000 should be allocated to payment of Taya's medical bills, with the rest allocated to claims other than medical expenses. There was no evidence that anything has been paid to AHCA towards its Medicaid lien, or that anything has been paid into an interest-bearing trust account for the benefit of AHCA pending the determination of the amount of its Medicaid lien, which at the time was claimed to be $55,944. The owner of the family van involved in the accident had a $10,000/$20,000 GEICO underinsured motorist policy, which also paid the policy limits. Although the evidence was not clear, the Petitioners appear to concede that all $20,000 was recovered by them for Taya's benefit. There was no evidence as to when the family's claim against the GEICO policy settled, or as to any agreement how the $20,000 should be allocated between medical expenses and other kinds of damages. There was no evidence that any of the $20,000 was paid to AHCA towards its Medicaid lien, or into an interest-bearing trust account for the benefit of AHCA pending the determination of the amount of its Medicaid lien. In addition to the insurance policy settlements, the owners of the other car paid the family approximately $250,000 from their own assets, which the family members agreed to apportion among themselves in a manner that was not disclosed by the evidence. There was no evidence as to when those funds were paid to the family, or when any of those funds was paid to Taya's benefit, if any. The evidence was not clear whether any of those funds was paid towards Taya's medical expenses that were not paid by Medicaid. The evidence suggested that some of the $250,000 was paid towards Taya's medical expenses to date, but it is possible that some of those expenses were reduced when providers accepted Medicaid. There was no evidence that any of those funds was paid to AHCA towards its Medicaid lien claim, or into an interest-bearing trust account for the benefit of AHCA, pending a determination of the amount of its Medicaid lien. A personal injury lawyer, who also was Taya's guardian ad litem, testified that the value Taya's claims against the owners of the other car was approximately $1.4 to $1.8 million. He did not testify as to the amount future medical expenses would contribute to the total value he estimated. AHCA has paid $55,710.98 in Medicaid benefits to treat Taya for her accident injuries. (The Petitioners stipulated to this amount.) Lee Memorial Hospital provided medical services for Taya and claims that it is owed $38,317.05, for which it appears to claim a statutory lien. The evidence was that Lee Memorial refused to accept Medicaid in payment for those services. If Medicaid were accepted, the amount of AHCA's lien would be more than $55,710.98, but probably not $38,317.05 more.
Findings Of Fact Billings for home health care services once made CCI the recipient of substantial Medicaid moneys. By resort to, among other things, "a variety of different types of statistical investigations," (T.82) the Office of Program Integrity within HRS' Medicaid Office is "continuously asking the question, do we get what we pay for?" Id. A separate, legislative agency, a unit of the Office of the Auditor General, investigates allegations of Medicaid fraud. Investigation In February of 1990, Ellen Williams, a medical health care program analyst in HRS' Office of Program Integrity, noticed that CCI was "suddenly showing up as either number one or number two in the State, and . . . was intrigued why a home health agency in Palatka would be [b]illing to the extent it appeared that they were." T.36. She "requested a printout of their billings" (T.37) and opened a file. Not long afterwards, Ms. Williams learned that the Medicaid Fraud Control Unit (MFCU) in the Auditor General's Office "had basically a new review of the same agency." T.37. MFCU investigators copied "a number of boxes" (T.116) of CCI's records, including "pieces of files" for ten of the 49 patients whose files HRS subsequently attempted to obtain from CCI. T.53. As far as the evidence showed, MFCU did not obtain "the entire files on any of these people." Id. In early May of 1990, Ms. Williams received an unsigned investigative report the Medicaid Fraud Control Unit had prepared. On the strength of this report, at her supervisor's direction, she prepared a letter which was sent to CCI by certified mail on May 20, 1991. Petitioner's Exhibit No. 3. She did not attempt at that time to verify the allegations in the MFCU report. Prosecution The letter dated May 20, 1991, initiated a recoupment and termination proceeding, Conval-Care, Inc. v. Department of Health and Rehabilitative Services, No. 91-4020, intended to end CCI's "participation in the Florida Medicaid program for [alleged] violation of federal and state laws and regulations respecting the Medicaid program," stating: Information has been received from the Medicaid Fraud Control Unit of the Office of the Auditor General (MFCU) to the effect that you have billed and been paid $591,082.00 for services that are not covered by Medicaid. Petitioner's Exhibit No. 3. HRS also sought to recover the alleged overpayment, and impose an administrative fine. The letter did not allege times. (HRS later concluded that the overbillings alleged in the letter occurred between December of 1989 and November of 1990, but HRS never sought leave to amend to allege this, and took no other step to limit the allegations in the recoupment and termination proceeding.) In response to CCI's request for formal administrative proceedings, HRS referred Case No. 91-4020 to the Division of Administrative Hearings. Discovery and Further Investigation On September 23, 1991, while Case No. 91-4020 was pending at the Division of Administrative Hearings, HRS' Ellen D. Williams wrote CCI's Inez Browning, as follows: In order to complete the Medicaid review of services billed by Conval-Care, Inc. to the Department of Health and Rehabilitative Services, it will be necessary to obtain completed home health records on a selected statistical sample of recipients. I plan to arrive at your Palatka office on Tuesday, October 8, 1991, for the purpose of copying the records for the individuals on the attached list. Please have them available at that office. If you have any problems or questions, please call me at (904) 488-3588. Respondent's Exhibit No. 1. Although not identified as such, the list of names was purportedly a random sample of Medicaid beneficiaries to whom CCI had provided services between December of 1989 and May of 1991, a period during which CCI's alleged overbillings were even higher. In response to Ms. Williams' letter of September 23, 1991, counsel for CCI wrote Ms. Williams, on September 30, 1991, as follows: Please recall that your office, due in large part to your actions, is involved in litigation with Conval-Care, Inc. As a result, any request for documents must be pursued through appropriate discovery channels pursuant to the Florida Rules of Civil Procedure. No records will be provided as a result of your letter of September 23rd. If you appear at the door, you will be refused entry. You referred to a "statistical sample" of recipients, yet requested information concerning both recipients whose records have already been provided and the remaining recipients whose records were not provided during the initial investigation. This hardly reflects any statistical sampling. Further, your letter contradicts your sworn testimony in which you indicated there was no pending investigation of Conval-Care, Inc. by DHRS. In any event, Conval-Care, Inc. is a represented party in active litigation with your agency and neither you or any other representative from DHRS may contact Conval- Care, Inc. or any of its employees without my consent. You and others at the agency may have realized the weakness of your claims against Conval-Care, Inc., since the credibility of several of your key witnesses has been seriously undermined, but we will not permit you to go on a fishing expedition to try to develop new allegations against our client. You made your case Ms. Williams, now live with it. If DHRS must seek other documents related to the matters at issue, its attorneys should know how to do that. Respondent's Exhibit No. 2. HRS did not file any request for production in Case No. 91-4020 under Fla. R. Civ. P. 1.310(b), 1.350 or 1.351, which are applicable to administrative proceedings by virtue of Rule 60Q-2.019, Florida Administrative Code. Instead, attaching the same list of 49 names that Ms. Williams had attached to her letter of September 23, 1991, counsel for HRS wrote CCI's counsel, on October 17, 1991, as follows: Pursuant to Chapter 400.484 and 409.913 Florida Statutes, representatives of the Department of Health and Rehabilitative Services intend to copy certain records in the possession of Conval-Care, Inc. It is their intention to go to your clients place of business on Tuesday, October 22, 1991 and obtain these copies. I have attached a list of those records which are of interest. Please advise the undersigned if this date is inconvenient. Respondent's Exhibit No. 3. Some, but not all, of the listed records concerned patients for whom reimbursement between December of 1989 and November of 1990 was at issue in Case No. 91-4020. On October 21, 1991, in response to Mr. Scott's letter dated four days earlier, Respondent's Exhibit No. 3, Julie Gallagher wrote, on behalf of CCI: Section 400.487, F.S., grants HRS the authority to make "such inspections and investigations as are necessary in order to determine the state of compliance with the provisions of this act and of rules or standards in force pursuant thereto." It is our position that HRS has already made such "inspections and investigations" and has determined that Conval-Care, Inc. is not in compliance with various provisions of the statute and rules and, hence, HRS has initiated termination proceedings to exclude Conval-Care, Inc. from the Medicaid Program. Further "inspections and investigations" are not necessary as required by the statute and will, therefore, not be permitted. The other statute you cited, Section 409.903 [sic], F.S., has nothing to do with the inspection of documents. Should you desire documents from Conval-Care, Inc., which are pertinent to the issue in the pending litigation, please submit a discovery request and we will respond appropriately. Respondent's Exhibit No. 4. Insisting it had the right to inspect the records in question, HRS sent Ms. Williams to Palatka where, as CCI's counsel had forewarned, nobody from CCI was on hand to receive her. Main Case Abandoned "In the month or so preceding" (T.52) September 23, 1991, Ms. Williams came to believe "that what MFCU referred to . . . as their sample was not in fact a [random] sample . . . [and] did not encompass the entire billing period." Id. At hearing, she testified that she wanted "to determine an overpayment amount, irrespective of the termination proceeding." T.60. But at the time this desire arose HRS was seeking to recover the "overpayment amount" in Case No. 91-4020, the recoupment and termination proceeding in which final hearing was then set for October 14, 1991. HRS' counsel in the recoupment and termination proceeding relied on the attempt to obtain records Ms. Williams initiated on September 23, 1991, as his sole means of securing records that HRS listed as exhibits it intended to offer in the recoupment and termination proceeding, Case No. 91-4020. Petitioner's Exhibit No. 7.; T. 134-5. After the attempt to gather evidence in this fashion proved unavailing, and after several continuances, HRS dropped the recoupment and termination proceeding it had initiated against CCI.
Recommendation It is, accordingly, RECOMMENDED: That HRS dismiss the sanctions letter which initiated these proceedings. DONE AND ENTERED this 30th day of June, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1993.
