16-006490MPI Agency For Health Care Administration vs. Halifax Hospice, Inc., D/B/A Halifax Health Hospice Status: Closed Recommended Order on Friday, June 30, 2017.

Summary: Petitioner proved that Respondent must repay Medicaid overpayments for certain paid claims, but failed to prove that Respondent was overpaid for other Medicaid claims. Petitioner proved that Respondent must pay a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 16 - 6490MPI

HALIFAX HOSPICE, INC., d/b/a

HALIFAX HEALTH HOSPICE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held April 24 ,

and 25 , 2017, in Tallahassee , Florida, before Yolonda Y. Green,

a duly - designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDivisionÑ).

APPEARANCES

For Petitioner: Rex D. Ware, Esquire

Christopher B. Lunny, Esquire

Radey Law Firm

Suite 200

301 South Bro nough Street

Tallahassee, Florida 32301

For Respondent: Karl David Acuff, Esquire

Law Offices of Karl David Acuff , P.A.

Suite 2

1615 Village Square Boulevard

Tallahassee, Florida 32309 - 2770

STATEMENT OF THE ISSUE S

The issues are wh ether Petitioner is entitled to recover

Medicaid funds paid to Respondent pursuant to section

409.913(1) , Florida Statutes , for hospice services Respondent

provided during the audit period between September 1, 2009 , and

December 31, 2012 ; and the amount of sanctions, if any, that

should be imposed pursuant to sec tion 409.913(15) , (17).

PRELIMINARY STATEMENT

Petitioner, Agency for Health Care Administration

(ÐPetitionerÑ or ÐAgencyÑ or ÐAHCAÑ ) , issued a Final Audit

Report (ÐFARÑ) date d August 21, 2015 , in which it indicated that

Respondent, Halifax Hospice, Inc., d/b/a Halifax Health Hospice

(ÐHalifaxÑ) , had been overpaid in the amount of $694,250.75

(subsequently reduced to $529, 906.88 ) for services performed

between September 1, 2009 , and December 31, 2012, that in whole

or in part are not covered by Medicaid. AHCA also seeks to

impo se an administrativ e fine, in the amount of $105, 981.38

(reduced from $138 ,850.15 ) as a sa nction in accordance with

section 409.913(15), (16), (17), for violating Florida

Administrative Code R ule 59G - 9.070(7)(e) and to recoup

investigative, legal, and expert witness costs.

Respondent timely requested a hearing and AHCA referred

this matter to the Division for a final hearing. On

November 15, 2016 , this matter wa s assigned to Administrative

Law Judge W. David Watkins , and on November 15, 2016, this

matter was transferred to the undersigned. The undersigned

issued a Notice of H eari ng scheduling the final hearing for

January 23, 2017. T he parties twice filed a Joint Motion for

Continuance of Final Hearing. The hearing was ultimately

scheduled for April 24 through 26, 2017.

The parties filed a Joint P rehearing Stipulation

stipulating to certain facts, which to the extent relevant, have

been incorporated in the findings of fact below.

On April 24, 2017, the hearing convened as scheduled and

concluded on April 25, 2017. At final hearing, Joint Exhibits 1

through 17 were admitted into evidence.

AHCA presented the live testimony of three witnesses:

Robert Reifinger, a program administrator in the AHCA Medicaid

Program Integrity Program (ÐMPIÑ ); Mike Armstrong, the audito r

in c harge for Health Integrity, LLC ; and Dr. Alan Heldman,

AHCAÓs expert in internal medicine and c ardiology . AHCA also

presented by deposition Dr. Todd Eisner, AHCAÓs expert in

internal medicine and g astroent erology. Halifax presented live

testimony of Raul Laurence Zimmerman, M.D., medical director for

Halifax.

The parties ordered a copy of the hearing transcript. The

four - volume T ranscript of the final hearing was filed with the

Division on May 11, 2017. At the end of the final hearing, the

parties stipulated that their proposed recommended orders would

be filed within 20 days of filing of the hearing transcript.

The parties timely submitted Pro posed Recommended Orders on

May 31, 2017 , which have been considered in preparation of this

Recommended Order.

Except as otherwise indicated, citations to Florida

Statutes or rules of the Florida Administrative Code refer to

the versions in effect during the time in which the alleged

overpayments were made.

FINDING S OF FACT

Based upon the stipulations of the parties and the evidence

presented at hearing, the following relevant Findings of Fact

are made.

Parties

1. Petitioner, AHCA , is the state agency responsible for

administering the Florida Medi caid Program. § 409.902, Fl a .

Stat. (2016). Medicaid is a joint federal and state partnership

to provide health care and related services to certain qualified

individuals.

2. Respondent, H alifax , is a provider of hospice and end -

of - life services in Volusia and Flagler counties. During th e

audit period of September 1, 2009 , through December 31, 2012 ,

Halifax was enrolled as a Medicaid provider and had a valid

Medicaid provider agreement with AHCA.

Hospice Services

3. Hospi ce is a form of palliative care. H owever , hospice

care is focused upon patients at the end - of - life - stage while

palliative care is for any patient with an advanced illness.

Both hospice and palliative care patients are amongst the

sickest patients, generally .

4. Hospice is focused upon serving the patient and f amily

to provide symptom management, supportive care, and emotional

and spiritual support during this difficult period when the

patient is approaching their end - of - life. Hospice care, as with

Halifax, uses an inter - disciplinary team (IDT) to provide

comfo rt, symptom management, and support to allow patients and

their families to come to terms with the patientÓs terminal

condition, i.e., that the patient is expected to die. Each

patient is reviewed in a meeting of the IDT no less than every

two weeks.

5. For hospice, a terminally - ill patient must choose to

elect hospice and to give up seeking curative care and

aggressive treatments.

6. At all times relevant to this proceeding, Petitioner

was authorized to provide hospice services to Medicaid

recipients.

AHCA Audit

7 . A Medicaid provider is a person or entity that has

voluntarily chosen to provide and be reimbursed for goods or

services provided to Medicaid recipients. As an enrolled

Medicaid provider, Halifax was subject to federal and state

statutes, regulations, rules, policy guidelines, and Medicaid

handbooks incorporated by reference into rule, which were in

effect during the audit period.

8 . AHCA is required to oversee the integrity of the

Medicaid program. Among other duties, AHCA is r equired to

conduct (or cause to be conducted) audits to determine possible

fraud, abuse, overpayments, or recipient neglect in the Medicaid

program. § 409.913(2), Fla. Stat. Under Florida law,

ÐoverpaymentÑ is defined as Ðany amount that is not authorize d

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 mi stake.Ñ

§ 409.913(1)(e), Fla. Stat .

9 . The f ederal Department of Health & Human Services,

Centers for Medicare and Medicaid (ÐCMSÑ) , contracted with

Health Integrity, LLC (ÐHIÑ), a private vendor, to perform an

audit of Halifax on behalf of AHCA. HI , in turn, retained a

company called Advanced Medical Reviews (ÐAMRÑ) to provide

physi cian reviews of claims during the audit process to

determine whether an audited claim was eligible for payment.

10 . The audit in this matter was conducted to determine

whether Medicaid recipients met eligibility for hospice

services. To establish the sco pe of the audit, HI identified

patients that had greater than six months of service, and then,

excluded recipients with cancer diagnoses and patients who were

dual eligible for Medicaid and Medicare. A ll the claims at

issue, along with patient medical rec ords, were firs t reviewed

by a claims analyst , who is a nurse consultant , to determine

whether the claim s met the criteria for hospice services.

11 . The patient records and the nurse consultant's summary

for each patient were then forwa rded to a peer reviewer, a

physician who used his or her medical expertise to determine the

medical necessity of the hospice services provided.

12 . In this case, AHCA employed the services of two peer

reviewers: Dr. Alan Heldman was the peer reviewer who

speciali zes in internal medicine and cardiology , and Dr. Todd

Eisner , who specializes in gastroenterology. The peer reviewers

prepared reports that offered their opinion as to whether a

patient was qualified for hospice services.

13 . A draft audit report (ÐDARÑ) w as prepared by HI, which

initially identified overpayment of Medicaid claims totaling

$694,250.75, relating to 12 patients. Halifax provided a

response to the DAR, and contested the overpayments for each of

the 12 patients. HalifaxÓs response was provided to the peer

review physicians, who, after reviewing the response, maintained

their original conclusions.

14 . HI then prepared the FAR, upholding the overpayments

identified in the DAR, and submitted it to CMS. CMS provided

the FAR to AHCA with instructions that AHCA was responsible for

initiating the state recovery process and furnishing the FAR to

the provider.

15 . The FAR contains the determination s of the peer review

physicians, specifically, whether each of the 12 patients at

issue had a terminal diagn osis with a life expectancy of six or

less months if their disease progressed at its normal course.

16 . After the FAR had been issued, upon further review, of

certain patient files at issue, AHCA determined that four of the

original 12 patients were eligible for Medicaid hospice

services, and revised the amount of overpayment it seeks to

$529,906.88, with a reduction in the fine it seeks to

$105,981.38 .

17 . Halifax is challenging the eligibility determination ,

i.e., the medical necessity of services provided, regarding the

following patients 1 / : Patient D ; Patient H ; Patient P ;

Patient Q ; Patient S ; Patient U ; Patient V ; and Patient O .

18 . The Florida Medicaid Hospice Services Coverage and

Limitations Handboo k , the January 2007 edition (Ð H andbookÑ ) ,

governs whether a service is medically necessary and meet s

certification criteria for hospice services . MPI instructs each

peer reviewer to review the criteria set forth in the H andbook

to determine whether services provided to a patient are eligible

for Medicaid coverage.

19 . To qualify for the Medicaid hospice program, all

recipients must:

Ʊ Be eligible for Medicaid hospice;

Ʊ Be certified by a physician as terminally

ill with a life expectancy of six months

or less if the disease runs its normal

course;

Ʊ Voluntarily elect hospice care for the

terminal illness;

Ʊ Sign and date a statement electing

hospice care;

Ʊ Disenroll as a participant in a Medicaid

or Medicare heal th maintenance

organization (HMO), MediPass, Provider

Service Network (PSN), Medicaid Exclusive

Provider Organization, MediPass Pilot

Programs or the ChildrenÓs Medical

Services Network;

Ʊ Disenroll as a participant in Project

AIDS Care; and

Ʊ Disenro ll as a participant in the Nursing

Home Diversion Waiver.

20 . The H andbook also provides c er tification of terminal

illness r equirements as follows:

For each period of hospice coverage, the

hospice must obtain written certification

from a physician indicating that the

recipient is terminally ill and has a life

expectancy of six months or less if the

terminal illness progresses at its normal

course. The initial certification must be

signed by the medical director of the

hospice or a physician member of the hospice

team and the recipientÓs attending physician

(if the recipient has an attending

physician). For the second and subsequent

election periods, the certification is

required to be signed by either the hospice

medical director or the physician m ember of

the hospice team.

21 . Certification documentation requirements used by the

peer review physicians are as follows:

Documentation to support the terminal

prognosis must accompany the initial

certification of terminal illness. This

documentation m ust be on file in the

recipientÓs hospice record. The

documentation must include, where

applicable, the following:

Ʊ Terminal diagnosis with life expectancy

of six months or less if the terminal

illness progresses at its normal course;

Ʊ Serial phys ician assessments, laboratory,

radiological, or other studies;

Ʊ Clinical progression of the terminal

disease;

Ʊ Recent impaired nutritional status

related to the terminal process;

Ʊ Recent decline in functional status; and

Ʊ Specific documentat ion that indicates

that the recipient has entered an end -

stage of a chronic disease.

22 . The Medicaid hospice provider must provide written

certification of eligibility for hospice services for each

patient. The certification is also required for each election

period. A patient may elect to receive hospice services for one

or more of the election periods. The election periods include :

an initial 90 - day period; a subsequent 90 - day period ; and

subsequent 60 - day time periods.

23 . The H andbook further provides guidance regarding the

election periods as follows:

The first 90 days of hospice care is

considered the initial hospice election

period. For the initial period, the hospice

must obtain written certification statements

from a hospice physician and the recipientÓs

attending physician, if the recipient has an

attending physician, no later than two

calendar days after the period begins. An

exc eption is if the hospice is unable to

obtain written certification, the hospice

must obtain verbal certification within two

days following initiation of hospice care,

with a written certification obtained before

billing for hospice care. If these

requirem ents are not met, Medicaid will not

reimburse for the days prior to the

certification. Instead, reimbursement will

begin with the date verbal cer tification is

obtained . . . .

For the subsequent election periods, written

certification from the hospice me dical

director or physician member of the

interdisciplinary group is required. If

written certification is not obtained before

the new election period begins, the hospice

must obtain a verbal certification statement

no later than two calendar days after t he

first day of each period from the hospice

medical director or physician member of the

hospiceÓs interdisciplinary group. A

written certification must be on file in the

recipientÓs record prior to billing hospice

services. Supporting medical documentat ion

must be maintained by the hospice in the

recipientÓs medical record.

Peer Review Physicians

24 . The two peer reviewers assigned to review claims in

this matter were Florida - licensed physicians, who were matched

by specialty or subspecialty to the claims they were reviewing.

Each physician testified as to his medical education,

background , and training. Petitioner offered each physician as

an expert, and the undersigned accepted each expert as such.

25 . Dr. Heldman has been licensed to practice medicine in

the state of Florida for 10 years. While in Florida, he worked

as a professor and practitioner within the University of Miami

Medical School and Health System until 2015. Since 2015 he ha s

maintained an independent private practice. Before p racticing

in Florida, Dr. Heldman practiced at Johns Hopkins Hospital in

Baltimore , Maryland , for 19 years. Dr. Heldman received his

training at Johns Hopkins in cardiology and interventional

cardiolog y. He has been board - certified in cardiovascula r

dise ase since 1995, and board - certified in interventional

cardiology since 1999 . Both cardiology specialties are

subspecialties of the board of internal medicine. Dr. Heldman

was previously board - certified in internal medicine in 1992 but

was not certified in that area when he reviewed the claims in

this matter. 2 / Dr. Heldman has referred patients to hospice .

2 6 . Dr. Eisner , who is board - certified in

gastroenterology, has seen numerous patients with liver disease

throughout his career and, based upon his experience, Dr. Eisner

understands what factors are properly considered when estimating

a patientÓs life expectancy.

27 . He also refers patients to hospice on a regul ar basis,

which routinely requires him to make the type of prognosis

determination such as those at issue in this matter. Although

Dr. Eisner has some experience dealing with patients who have

C hronic Obstructive Pulmonary D isease (Ð COPD Ñ) , he does not ha ve

board - certification in pulmonary disease . Also, Dr. Eisner has

never provided expert testimony regarding pulmonology

conditions.

Halifax Hospice Providers

28 . Dr. Zimmerman, HalifaxÓs medical d irector, authored

the provider response to the eight patients at issue and

testified at the final hearing in that regard. Although he is

board - certified in hospice and palliative m edicine, he is not

and has never been certifi ed in internal medicine,

g astr oenterology , or c ardiology.

29 . Halifax did not elicit testimony from Dr. Zimmerman

that he had any experience in examining and treating patients

with liver disease, COPD, dementia , or end - stage lung disease.

Likewise, none of the other Halifax physicians testified at

hearing and there was no evidence of their respective experience

in examining and treating patients with the illnesses involved

in this case.

30 . Additionally, although Dr. Zimmerman initially

certified t he patients selected for the audit for hospice

services, and attempted to support the other Halifax hospice

physicians when they repeatedly recertified the patients as

eligible, Dr. Zimmerman admitted he never examined any of these

patients himself and was unable to attest that any of his in -

house physicians ever personally examined any of the patients.

31. In addition to Dr. Zimmerman, the hospice physicians

involved in the certification of the eight patients at issue in

this audit were as follows:

Ʊ Dr. Richard C. Weiss: board - certifi ed in

internal medicine, oncology, and hospice &

palliative m edicine

Ʊ Dr. John Bunnell: board - certified in

family medicine and hospice & palliative

m edicine

Ʊ Dr. Arlen Stauffer: board - certified in

family m edicine and hospice & palliative

m edicin e

Ʊ Dr. Susan Howard: board - certified in

family medicine and hospice & palliative

m edicine

Ʊ Dr. Lyle E. Wadsworth : board - certified

in internal medicine, geriatrics, and

hospice & p alliative m edicine

Ʊ Dr. Greg ory Favis: board - certified in

internal m edicine, with s ubspecialty

certification in h e matology and o ncology ;

and

Ʊ Dr . Justin Chan: board - certified in

family m edicine

Specific Patient Review

32. At the time of the hearing, the hospice service claims

related to eight patients remained at issue. The findings of

fact regarding eligibility of each patient for hospice services

are set forth below in the following order : D, H, P, Q, S, U ,

V , and O.

Patient D

33 . Patient D, a 53 - year - old male , was first admitted to

Halifax Hospice on February 25, 2011 , with a terminal diagnosis

of hepatocellular cancer and cirr hosis secondary to hepatitis C.

He was discharged on May 29, 2012 , and then readmitted on

June 13, 2012 , through December 31, 2012 ( audit period ) . He had

previously been in v arious hospices for six to seven y ears .

34 . Dr. Eisner noted there was no recent decline in

functional status. In June 2011 , a nurse noted the p atient was

ambulating well and went fishing, but he experienced frequent

falls. He continued to experience falls (from his couch and

bicycle) and also had mild to moderate arm and hand tremors.

His weight decreased from 176 to 162 over seven months. Thus ,

the patient records reflected some indication of functional

decline.

35 . However, a s Dr. Eisner credibly testified, even

considering the alleged terminal diagnosis, the patient showed

no evidence of having refractory ascites, hepatic encephalopathy

nor gastrointestinal bleeding. Further, he indicated there was

no documentation of variceal bleeding, hepatorenal syndrome , or

spontaneous bacterial peritonitis, which he would expect to see

if the patient truly had six or less months to live.

36 . The me dical records support Dr. EisnerÓs conclus ion

that the patient did not meet the standard of six or less months

to live. Throughout the period of the hospice stay, nursing

notes indicate that the patient was stable, ambulating well,

felt good , and was obse rved by an ER doctor after a fall off his

bike, as Ðwell - nourished, well - developed patient, [ and] in no

apparent distress.Ñ

37. Even Dr. Weiss, t he hospice physician who worked with

Patient D , noted in recertification that ÐIt is a difficult case

as he c learly has a terminal illness and at the same time is

manipulative with no overt progression of disease.Ñ

38. Dr. Eisner credibly testified that the patient was not

eligible for hospice services and , thus , the services provided

were not eligible for Med icaid reimbursement.

39. The greater weight of the evidence proves that

P atient D was not eligible for Medicaid hospice services and

that Petitioner is entitled to recover an overpayment of

$ 98,776 . 63

Patient H

40 . Patient H was admitted to Halifax on December 31,

2010 , w ith a terminal diagnosis of end - stage liver disease

secondary to chronic hepatitis C. Dr. Eisner determined that

Patient H did not have a life expectanc y of less than six

months. Dr. Eisner opined that there was no clinical

progressio n of the patientÓs terminal disease. The patient did

not have impaired nutritional or functional status related to

the terminal illness. The patient had weight loss but

experienced increased abdominal girth.

41 . The treating hospice physician was Dr. Wad s w orth , who

is board - certified in internal m edicine. He noted that the

patient had cirrhosis and variceal bleeding and hepatic

encephalopathy. How ever, as correctly noted by Dr. Eisner,

those conditions were the natural progression of the disease,

but would not result in a life expectance of less than six

months.

42 . Dr. Eisner also testified that patients with chronic

liver disease can live up to 10 years and patients with hepatic

encephalopathy can live up to 15 years.

43 . Patient H was ultimate ly discharged for drug

diversion, and although her discharge note states: ÐSuspected

drug dive rsion became evident over last 2 months when controlled

medication was not available for nurses to check during visit , Ñ

the patient records reflect that Halifax was aware of this

problem throughout her stay, but did not discharge her for an

additional 12 months.

44 . The inconsistency of the medical records and

Dr. EisnerÓs opinions indicate that this patient did not have a

terminal diagnosis with a life expectan cy of six months or less

if her terminal disease progressed at its normal course at

initial certification or at any recertification throughout her

stay with Halifax. The medical records contained in this

patientÓs file do not support a finding that the Me dicaid

hospice eligibility standard was met.

45 . Based upon the greater weight of the evidence in this

case, it is determined that P atient H was not eligible for

Medicaid hospice services and that Petitioner is entitled to

r ecover an overpayment of $50,14 2.74.

Patient P

46 . Patient P, a 48 - year - old male, was admitted to Halifax

on August 25, 2011 , w ith a terminal diagnosis of end - stage liver

disease. The first 11 months of his stay were denied, however ,

the last month was approved.

47 . Dr. Eis ner testified that although the patient had

ascites requiring frequent paracentesis, he did not see

documentation indicating there was a progression of the terminal

disease until July 2012. Dr. Eisner also determined there was

no documentation in the pati ent records of impaired nutritional

statu s related to the disease or a decline in functional status.

However, when the patient did show a decline in functional

status, Dr. Eisner agreed the patient was eligible.

48 . Further, because, during the denied pe riod, there was

no evidence of variceal bleeding, hepatorenal syndrome or

recurrent sp ontaneous bacterial peritonitis, Dr. Eisner opined

that the life expectancy of the patient would typical ly be one

to two years, not six or less months.

49 . There is als o a discrepancy in the medical records for

this patient. In the narrative for the recertification for

November 24, 2011, Dr. Wadsworth indicates this is a Ð48 yo ES

Dementia, and multiple comorbidities. Has had [hallucinations]

has i mproved.Ñ Certainly this is in error and cannot be the

ba sis for a valid recertification Î - this patient did not have

dementia nor were there reported hallucinations.

50 . This patient did not have a terminal diagnosis with a

life expectancy of six months or less if his terminal disease

progressed at its normal course at initial certification or at

any recertification throughout the first 11 months of his stay

with Halifax. The medical records contained in this patientÓs

file do not support a finding that the Medicai d hospice

eligibility standard was met.

51 . Based upon the greater weight of the evidence in this

case, it is determined that P atient P was not eligible for

Medicaid hospice services and that Petitioner is entitled to

recover an overpayment of $60,872.04 .

Patient Q

52 . Patient Q was a 56 - year - old male admitted with end -

stage lung disease. Per the FAR overpayment recalculations, he

was deemed ineligible for the first three months of his hospice

admission beginning on December 13, 2011 , and was thereaft er

approved through the end of the audit period.

53 . As Dr. Eisner reasoned, the medical records did not

support hospice eligibility for the first three months that were

billed. The patient was stable, using a walker , and had

reasonable palliative perfo rmance scale scores, and showed no

decline in functional statu s and Transient Ischemic Attacks

(ÐTIA) , if any, were stable.

54 . However, as Dr. Eisner noted, after three months, the

records did contain evidence supporting a progressive

deterioration of the patientÓs condition and functional status.

55 . Much of the issue with this patient appears to be

whether the patient actually had ongoing TIA episodes prior to

and during the initial certification period.

56 . The patientÓs medical record from a hospital visit six

months prior to hospice admission, where he was seen for chest

pains, made no mention of TIAs .

57 . Further, Dr. Zimmerman admitted that none of his

doctors or nurses had witness ed the patient having a TIA, and

the records do not support that the patient had mini - strokes

prior to the approved period.

58 . While Dr. Zimmerman also attempted to justify his

concerns with TIAs based upon one episode during the denied

period where the patient reported being d izzy and short of

breath, he admit ted that these could have been caused by the

extensive amount of opiates and other drugs the patient had been

given.

59 . For the denied period, the patient did not have a

terminal diagnosis with a life expectancy of six months or less

if his terminal dis ease progressed at its normal course at

initial certification. The medical records do not support a

finding that the Medicaid hospice eligibility standard was met.

60 . Based upon the greater weight of the evidence, it is

determined that P atient P was no t eligible for Medicaid hospice

services and that Petitioner is entitled to recover an

overpayment of $12,716.10.

Patient S

61 . Patient S, a 51 - year - old patient , was admitted to

Halifax w ith a terminal diagnosis of end - stage liver disease.

Dr. Eisner determined that hospice services were not appropriate

for Patient S. Specifically, he determined that the patientÓs

disease, while terminal, did not result in a life expectancy of

six months or less. In refutin g Dr. ZimmermanÓs response,

Dr. Eisner stat ed, ÐIn the absence of recurrent, untreated,

variceal bleeding, hepatorenal syndrome or recurrent spontaneous

bacterial peritonitis, the life expectancy of patients with

cirrhosis, ascites, and hepatic encephalopathy is typically 1 to

2 years.Ñ There was no clinical progression of the disease.

62 . The Halifax treating physician , Dr. Weiss, noted that

the patientÓs condition included cirrhosis and hepatic

encephalop athy. However, as noted by Dr. Eisner, the condition

was the natural progression of the disease.

63 . The greater weight of the evidenc e supports that

Patient S was not eligible for hospice services for the period

September 1, 2009, through December 1, 2010, and that Petitioner

is entitled to recover an overpayment of $63,235.91.

Patient U

64 . Patient U , a 61 - year - old female , was admitted with a

terminal diagnosis of dementia. She was first admitted to

Halifax hospice in October 2010, however , the claims audit

period for this patient did not begin until January 1, 2011.

Dr. Heldman indicated that she was not eligible through the end

of her initial stay in hospice on January 31, 2012. Dr. Heldman

approved her second stay in hospice beginning on May 19, 2012.

65 . Dr. Heldman, who indicated he had dealt with dementia

patients many times, testified that there were discrepancies

throughout her medical records and that the file did not contain

documentation showing serial physician assessments, clinical

progression of the terminal disease, a decline in functional

status , nor of t he end stage of a terminal disease.

66 . Dr. Zimmerman, in his provider response after the DAR,

focused on what he claimed was a significant weight loss with

this patient over the period she remained in hospice care.

67 . As Dr. Zimmerman stated in the p rovider response :

Ðwhen certifying p hysicians saw consistent weight

gain/stabilization they became comfortable that the improvement

was not a brief ÒhoneymoonÓ in her failing nutritional status

and they no longer believed that her Ònormal courseÓ would

res ult in a life expectancy of six months or less and they

appropriately discharged her.Ñ It is clear D r. Zimmerman relied

on the patientÓs alleged dramatic weight loss to justify

continued provision of hospice services to the patient.

68 . However, at the final hearing , Dr. Zimmerman conceded

that the dramatic weight loss upon which he relied (and his

physician who was recertifying the patient relied on) in

evaluating this patient, was a mistake.

69 . T he factor upon which Dr. Zimmerman relied upon to

support the patientÓs stay in hospice, including his initial

certification and at least two recertifications, did not

actually exist .

70 . Dr. Heldman likewise provided credible testimony

regarding the inconsistencies i n HalifaxÓs records for

Patient UÓs file and that the records did not contain sufficient

documentation to support the initial certification and

recertifications.

71 . The prepondera nce of the evidence proves that

P atient U was not eligible for Medicaid hospice services and

that Petitioner is entitled to recover an overpayment of

$47,159.40.

Patient V

72 . Patient V, a 56 - year - old male , was initially admit ted

to Halifax on May 22, 2012 , with a terminal diagnosis of end -

stage liver disease.

73 . Dr. Eisner testified that although this patient did

have ascites, they are part of the normal pro gression of the

disease and the condition was appropria tely treated with

paracentesi s. Further , he indicated that throughout t he course

of the patientÓs stay, there was no documentation to show a

clinical progression of the terminal disease . Dr. Eisne r also

noted there was no evidence of impaired nutritional status

r elated to the terminal disease or any decline in functional

sta tus . More importantly, Dr. Eisner opined that there was no

evidence that the patient had entered the end stage of a chronic

disease. Finally, he saw no evidence that the patient had

variceal bleeding, hepatorenal syndrome , or recurrent

spontaneous bacterial peritonitis, which would have indicated

six months or less to live.

74 . Dr. Zimmerman testified that his team was extremely

worried about the patientÓs prior episode of ventricular

tachycardia and the chance of anothe r episode that would be

fatal, and that this chance supported keeping him in hospice.

75 . Dr. Zimmerman highlighted this grave concern

repeatedly through his written response to the DAR. However, on

cross - examination, he admitted that the patient did n ot have a

histo ry of the tachycardia but rather had one episode that

lasted 20 beats or less and that Halifax did not send the

patient to be furthe r evaluated by a cardiologist. He also

admitted that the opiates Halifax treatment providers were

giving Pat ient V could have caused the dizziness that prompted

their concern and allegedly supported the prognostication of

limited life expectancy.

76 . P atient V did not have a terminal diagnosis with a

life expectancy of six months or less if his terminal disea se

progressed at its normal course at initial certification or at

any recertification throughout his stay with Halifax during the

audit period. The medical records contained in this patientÓs

file do not support a finding that the Medicaid hospice

eligibi lity standard was met.

77 . Based upon the greater weight of the evidence in this

case, it is determined that P atient V was not eligible for

Medicaid hospice services and that Petitioner is entitled to

recover an overpayment of $38,769.20.

Patient O

78 . Patient O, a 57 - year - old female, was first admitted to

Halifax on October 16, 2009 , with a terminal diagnosis of COP D,

a common breathing disorder. She wa s discharged November 9,

2012, because Halifax determined she did not meet the criteria

for hospic e.

79 . Although Patient O had COPD, Halifax never present ed

her for a FEV1 test which would have been a good indicator of

the degree of COPD and would have assist ed in properly obtaining

a prognos is of life expectancy .

80 . Patient O was recerti fied for hospice 16 times, with

little or no narrative from the recertifying Halifax physician

present in the medical records. Patient O also regularly showed

oxygen saturation levels within the normal range for a COPD

patient.

81 . In May 2010, seven month s in to her hospice stay, there

wa s no evidence of impaired nutritional status, no signs or

symptoms of respiratory distress, no change in chest pain,

residual weakness, fair appetite, no swallowing difficultie s and

her pain was well controlled.

82 . Additiona lly, in September 2010, there were notes that

the patientÓ s lungs were clear, she had been removed from oxygen

for activities , and had showered wit hout difficulty.

83 . Between December 2010 through September 2012, the

nurseÓs notes reflect that patient O stated that she was doing

better and had not experienced shortness of breath.

84 . It appears from the medical records that while the

patient may have had COPD, it was not progressing.

85 . Dr. Eisner testified that other than intermittent

upper resp iratory infections, the patientÓs pulmonary status

remained stable and showed no progression over the course of

time. Further, he saw no proof that her coronary heart disease

or diabetes deteriorated over the three years and that, although

she had some we ight loss, there was no documentation of a

decline in her functional status.

86 . However, Dr. Eisner provided an opinion regarding this

patient outside his expertise. That a COPD terminal diagnosis

was beyond his exp erience was made clear when Dr. Eisner could

not identify the specific indicators for when a COPD patient was

decompensating. Although Dr. Eisner may have treated patients

with COPD, his primary practice treating patients was related to

gastroenterol ogical conditions. He was not board - c ertified in

pulmonology and was not trained in the specialty.

87 . Therefore , AHCA has not met its burden by the greater

weight of the evidence that P atient O was not eligible for

Medicaid hospice services , and Petitioner is not entitled to

recover an overpayment of $158,234.66.

Fine Calculation

88 . When calculating the appropriate fine to impose

against a provider, MPI uses a formula based on the number of

claims that are in violation of rule 59G - 9.070 (7)(e) .

Specifically, t he formula involves multiplying the number of

claims in violation of the rule by $1,000 to calculate the total

fine . 3 / The final total may not exceed 20 percent of the total

overpayment, which resulted in a fine of $ 64 , 981.38.

Summary of Findings of Fact

89 . At the time of the hearing, AHCA sought from

Respondent overpayments in the amount of $529,906.88 for eight

patients who received hospice services at Halifax during the

audit period . The findings of fact above upheld AHCA's denial

of hospice services for patients : D, H, P, Q, S, U , and V . The

Respondent rebutted the evidence regarding eligibility of

Patient O. Therefore, AHCA is entitled to recover overpayment

of $371,672.22.

90 . Each expert credibly testified as to when each patient

was admitted and the certification for each patient. The

experts provided the requisite support to both the DAR and FAR

for the patients where there was a finding of ineligibility for

hospice services .

CONCLUSIONS OF LAW

91 . The Division of Administrative Hearings has

jurisdiction over the parties and su bject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

4 09.913(31), Florida Statutes (2016) .

92 . The burden of proof is on the Agency to prove the

material allegati ons by a preponderance of the evidence.

S. Med. Servs., Inc. v. Ag. for Health Care Admin . , 653 So. 2d

440 (Fla. 3d DCA 1995); Southpoint Pharmacy v. DepÓt of HRS ,

596 So. 2d 106, 109 (Fla. 1st DCA 1992). The sole exception

regarding the standard of proo f is that clear and convincing

evidence is required for fines. DepÓt of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996).

93 . Section 409.902 provides , in pertinent part:

(1) The Agency for Health Care

Administration 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.

These payments shall be made, subject to any

limitations or directions provided for in

the General Appropriations Act, only for

services included in the program, shall be

made only on behalf of eligible individuals,

and shall be made only to qualified

providers in accordance with federal

requirements for Title X IX of the Social

Security Act and the provisions of state

law. This program of medical assistance is

designated the ÐMedicaid program.Ñ

94 . To meet its burden of proof, the Agency may rely on

the audit records and report. Section 409.913(21) , (22)

prov ide s :

(21) When making a determination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider showing the calculation of

overpayments. The agencyÓs determination

must be based solely upon information

availab le to it before issuance of the audit

report and, in the case of documentation

obtained to substantiate claims for Medicaid

reimbursement, based solely upon

contemporaneous records. The agency may

consider addenda or modifications to a note

that was made contemporaneously with the

patient care episode if the addenda or

modifications are germane to the note.

(22) The audit report, supported by agency

work papers, showing an overpayment to a

provider constitutes evidence of the

overpayment. A provider may not present or

elicit testimony on direct examination or

cross - examination in any court or

administrative proceeding, regarding the

purchase or acquisition by any means of

drugs, goods, or supplies; sales or

divestment by any means of drugs, goods, or

sup plies; or inventory of drugs, goods, or

supplies, unless such acquisition, sales,

divestment, or inventory is documented by

written invoices, written inventory records,

or other competent written documentary

evidence maintained in the normal course of

the providerÓs business. A provider may not

present records to contest an overpayment or

sanction unless such records are

contemporaneous and, if requested during the

audit process, were furnished to the agency

or its agent upon request. This limitation

does not apply to Medicaid cost report

audits. This limitation does not preclude

consideration by the agency of addenda or

modifications to a note if the addenda or

modifications are made before notification of

the audit, the addenda or modifications are

germ ane to the note, and the note was made

contemporaneously with a patient care

episode. No twithstanding the applicable

rules of discovery, all documentation to be

offered as evidence at an administrative

hearing on a Medicaid overpayment or an

administrativ e sanction must be exchanged by

all parties at least 14 days before the

administrative hearing or be excluded from

consideration.

95 . The term ÐoverpaymentÑ is defined as Ðany 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.Ñ § 409.913( 1)(e), Fla. Stat.

96 . A claim presented under the Medicaid program imposes

on the provider an affirmative duty to be responsible for and to

assure that each claim is true and accurate and that the service

for which payment is claimed has been provided to the Medicaid

recipient prior to the submission of the claim. § 409.913(7),

Fla. Stat.

97 . In this case, AHCA seeks reimbursement of overpayments

based upon the lack of eligibility, in whole or in part, of the

eight patients at issue. In this proc e eding , eligibility is

based in part on medical necessity as determined by peer review

of the patient records .

98 . Section 409.9131(2) provides, in pertinent part:

(a) "Active practice" means "a physician

must have regularly provided medical care

and treatment to patients within the past

two years."

( b) ÐMedical necessityÑ or Ðmedically

necessaryÑ means any goods or services

necessary to palliate the effects of a

terminal condition or to prevent, diagnose,

correct, cure, alleviate, or preclude

deterioration of a condition that threatens

life, causes p ain or suffering, or results

in illness or infirmity, which goods or

services are provided in accordance with

generally accepted standards of medical

practice. For purposes of determining

Medicaid reimbursement, the agency is the

final arbiter of medical necessity. In

making determinations of medical necessity,

the agency must, to the maximum extent

possible, use a physician in active

practice, either employed by or under

contract with the agency, of the same

specialty or subspecialty as the physician

und er review. Such determination must be

based upon the information available at the

time the goods or services were provided.

(c) ÐPeerÑ means a Florida licensed

physician who is, to the maximum extent

possible, of the same specialty or

subspecialty, licensed under the same

chapter, and in active practice.

(d) ÐPeer reviewÑ means an evaluation of

the professional practices of a Medicaid

physician provider by a peer or peers in

order to assess the medical necessity,

appropriateness, and quality o f care

provided, as such care is compared to that

cu stomarily furnished by the physicianÓs

peers and to recognized health care

standards, and, in cases involving

determination of medical necessity, to

determine whether the documentation in the

physicianÓs records is adequate.

99 . Respondent alleged in its Petition that AHCA applied

unadopted rules in the audit process, by providing peer

reviewers with criteria that is not supported by statute and

rule and calculating the fines improperly. In the Prehear ing

Stipulation, Respondent appears to have limited its allegations

to ÐAHCA utilized unadopted rules in its adoption of the Health

Integrity Audit as part of its issuing the FAR.Ñ However, there

is no evidence in the record nor did Respondent elicit any

testimony that AHCA applied any unadopted rule in any regard in

this matter or that there was any statement of Ðgeneral

applicabilityÑ involved.

100 . In a proceeding challenging an unadopted rul e, the

burden of proof is on the party challenging the rule to prove

the agency statement is an unadopted rule. Since Petitioner

offered no evidence at the final hearing, the undersigned finds

Halifax abandoned this issue.

101 . Respondent also argued in its Proposed Recommended

Order that the peer review physicians retained by AHCA were not

qualified to perform the reviews and render their respective

opinions on t he eligibility of the eight patients at issue.

102 . The primary medical decisions in this matter

concerned whether each patient was eligible for Medicaid hospice

services at initial certification and each recertification with

a terminal diagnosis with a life expectancy of six or less

months to live if their terminal disease followed its normal

course. 4/ The primary conditions for each patient involved

gastroenterology - and cardiology - related conditions. Both pe er

review physicians were board - certified in internal m edicine as a

prerequisite of their s ub - specialty certifications in

g astroenterolog y and c ardiology, respectively. Thus , they were

qualified to the extent possible to perform r eview of the

patient claims for patients : D, H, P, Q, S , U , and V .

103 . However , the peer revi ew physician for patient O,

Dr. Eisner, was not qualified to the extent possible to perform

a review for a patient who experienced extensive pulmonary

conditions.

104 . The D AR and subsequent FAR support and constitute

evidence of the overpayments claimed. In light of the totality

of all the evidence p resented in this case, AHCA should recover

the overpayment as modified herein based upon the findings of

fact above.

105 . The rule that addresses sanctions, rule 59G -

9.090(7)(e), underwent amendments during the audit period. The

version of rule Rule 59G - 9.070(7)(e) in effect between September

1, 2009 and September 7, 2010 provides that:

SANCTIONS: Except when the Secretary of

the Agency determines not to impose a

sanction, pursuant to Section

409.913(16)(j), F.S., sanctions shall be

imposed for the f ollowing:

* * *

(e) Failure to comply with the provisions

of the Medicaid provider publications that

have been adopted by reference as rules,

Medicaid laws, the requirements and

provisions in the providerÓs Medicaid

provider agreement, or the certification

found on claim form s or transmittal forms

for electronically submitted claims by the

provider or auth orized representative.

§ 409.913(15)(e), F la . S tat .

106. The version of rule Rule 59G - 9.070(7)(e) which was in

effect September 7, 2010 through the end of the audit period

provides that:

(7) SANCTIONS: Except when the Secretary of

the Agency determines not to impose a

sanction, pursuant to Section

409.913(16)(j), F.S., sanctions shall be

imposed for the following:

* * *

(e) Failure to comply with the provisions of

the Medicaid provider publications that have

been adopted by reference as rules, Medicaid

laws, the requirements and provisions in the

providerÓs Medicaid provider agreement, or

the certification found on claim form s or

transmittal forms for electronically

submitted claims by the provider or

authorized representative. [Section

409.913(15)(e), F.S.]

* * *

(10) GUIDELINES FOR SANCTIONS.

(a) The AgencyÓs authority to impose

sanctions on a provider, entity, or person

shall be in addition to the AgencyÓs

authority to recover a determined

overpayment, other remedies afforded to the

Agency by law, appropriate referrals to

other agencies, and any other regulatory

actions against the provider.

* * *

(i) A $500 fine per provision, not to exceed

$3,000 per agency action. For a pattern: a

$1,000 fine per provision, not to exceed

$6,000 per agency action.

107 . Each monthly period that Halifax billed for services

for these eight patients that were determined to be ineligible

for Medicaid reimbursement, Hali fax is liable for a $1 , 000 fine,

per claim for the time period of September 7, 2010 through

December 31, 2012 , which is capped at 20 percent of the

repayment amount . Halifax is liable for a $500 fine, per claim

for the time period of September 1, 2009 thro ugh September 6,

2010, which is capped at $3,000 per action. Ther efore, AHCA

should impose a fine of $64 ,981.38 in this case.

108 . The F AR should be revised consistent with the

findings herein, to arrive at a final o verpayment amount of

$ 371, 672.22 and fine of $64 ,981 .38 .

109 . AHCA reserved its right to amend its cost worksheet

i n this matter and, pursuant to s ection 409.913 (23), to file a

request with the undersigned to seek all investigative an d legal

costs, if it prevailed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that that the Agency for Health Care

Administration enter a final order directing Halifax to pay

$371,672.22 for the claims found to be overpayments and a fine

of $67,981.38. The undersigned reserves jurisdiction to award

costs to the prevailing party.

DONE AND ENT ERED this 30th day of June , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 30th day of June , 2017 .

ENDNOTE S

1/ For confidentiality reasons, including the requirements of

HIPPA, the parties have agreed to reference the patients in

dispute by letter, representing the first letter of the last

name of the patient.

2 / While Dr. Heldman was not board - certified when he reviewed

the claims , t he statute requires that he be certified at the

time of the dates of service.

3 / Under rule 59G - 9.070, AHCA may impose a fine of $1,000 per

claim for a first offense.

4/ At the hearing, Petitioner raised the issue of whether the

peer reviewers were unduly influenced by having the records for

the patients Ó post - audit period. Both Dr. Heldman and Dr.

Eisner credibly denied any such influence.

COPIES FURNISHED:

Karl David Acuff, Esquire

Law Office of Karl David Acuff, P.A.

Suite 2

1615 Village Square Boulevard

Tallahassee, Florida 32309 - 2770

(eServed)

Joseph G. Hern, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Rex D. Ware, Esquire

Radey Law Firm

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Christopher B. Lunny, Esquire

Radey Law Firm

Suite 200

301 Sou th Bronough Street

Tallahassee, Florida 32301

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.