00-004924 Monef Health Services, Inc. vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, November 14, 2001.

Summary: The evidence showed that Medicaid provider was liable for overpayment received in compensation for non-covered home health services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONEF HEALTH SERVICES, INC., )

)

Petitioner, )

)

vs. ) Case No. 00 - 4924

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED OR DER

On April 24, 2001, in Miami, Florida, Administrative Law

Judge John G. Van Laningham of the Division of Administrative

Hearings convened a formal hearing in this matter, which was

completed that day.

APPEARANCES

For Petitioner: Shawn Jordan, Esqui re

13740 Northeast 11th Avenue

North Miami, Florida 33161

and

Patrick A. Scott, Esquire

The Scott Law Group, P.A.

Suite 707 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

For Respondent: L. William Porter, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Executive Center II I

Tallahassee, Florida 32308 - 5403

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner must

reimburse Respondent for payments totaling $29,701.19 that

Petitioner admittedly received from the Medicaid Program between

May 1, 1996, and March 31, 1998, in compensation for the

provision of home health services. Respondent contends that

Petitioner is not entitled to retain the payments in question,

primarily on the allegations that the compensated services were

not medically necessary, were improperly documented, or both.

PRELIMINARY STATEMENT

Respondent Agency for Health Care Administration (the

"Agency") is the agency responsible for administering the

Florida Medicaid Program. Petitioner Monef Health Services,

Inc. ("Monef") is a licensed home health agency which is

enrolled as a Medicaid provider.

On October 5, 2000, the Agency issued a Final Agency Audit

Report demanding that Monef reimburse the Agency $30,266.35 in

alleged Medicaid overpaymen ts for services (home health aide and

skilled nursing care) that Monef had rendered to Medicaid

recipients between May 1, 1996, and March 31, 1998.

By letter dated October 30, 2000, Monef timely requested a

formal administrative hearing, and the Agency re ferred the

matter to the Division of Administrative Hearings. Thereafter,

the parties were duly notified that a final hearing would begin

at 10:00 a.m. on April 24, 2001, at the Miami - Dade County

Courthouse in Miami, Florida. Both sides appeared at the

s cheduled time and place; the final hearing lasted one day.

When the hearing began, the Agency represented that, after

further consideration, it had decided to give Monef the benefit

of the doubt on some disputed claims, reducing the amount in

controversy t o $29,701.19.

Also at the outset of the hearing, the parties announced

their agreement that if the Agency’s physician - consultant,

Dr. John Sullenburger, were to take the stand, his expert

testimony, based on the patients' medical records, would be tha t

the services alleged by the Agency to be medically unnecessary

were, in his opinion, medically unnecessary. There being no

dispute regarding this witness's ultimate opinion, the parties

stipulated that Dr. Sullenburger would not need to testify, and

tha t the factfinder could consider and rely upon his opinion as

though he had expressed it under oath, upon examination. With

the Agency's consent, Monef —— which conceded that it had brought

no expert witness of its own to rebut Dr. Sullenburger's

testimony —— reserved the right to argue that the medical records

and other materials expected to be offered in evidence would

support findings of medical necessity, contrary to

Dr. Sullenburger's opinion.

The Agency identified 42 exhibits, numbered 1 throu gh 42,

and offered them into evidence. Without objection, Respondent's

Exhibits 1 through 42, many of which were composites drawing

together agency work papers and patients' medical records, were

admitted.

The Agency called two witnesses: Ellen William s,

Medicaid/Healthcare Program Analyst; and Claire Balbo, R.N.

These women are Agency employees who had been personally

involved in the Medicaid audit of Monef. Monef's only witness

was its Director of Nursing, Nse Essiet, R.N., B.A., B.S.C.N.,

M.P.A. M onef proffered no exhibits.

A transcript of the final hearing was filed with the

Division on July 18, 2001. The parties filed proposed

recommended orders, and these papers were carefully considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

The evidence presented at final hearing established the

facts that follow.

1. The Agency is responsible for administering the Florida

Medicaid Program. As one of its duties, the Agency must recover

"overpayments . . . as appropriate," the term "ove rpayment"

being 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.

2. This case arises out of the Agency's attempt to recover

alleged overpayments from Monef, a Florida - licensed home health

agency. As an enrolled Medicaid provider, Monef is authorized,

under a Medicaid Provider A greement with the Agency, to provide

home health services to Medicaid recipients.

3. Under the Medicaid Provider Agreement, Monef assented

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.”

4. The home health services at issue consisted of skilled

nursing care rendered either by a registered nurse (“RN”) or a

licensed practical nurse (“LPN”), as the needs of the recipient

required, together with personal care provided by a home health

aide.

5. The "audit period" that is the subject of the Agency's

recoupment effort is May 1, 1996 to March 31, 1998. During this

audit period, the Medicaid Program reimbursed Monef for all of

the skilled nursing and home health aide services that are the

subject of this dispute.

6. Largely (though not entirely) on the allegation that

the home health services in question were not medically

necessary, the Agency contends that Monef co llected overpayments

totaling $29,701.19 in compensation for services rendered to

nine separate patients.

7. The following table summarizes the Agency's

allegations.

PATIENT NAME GROUND(S) FOR DENIAL ALLEGED OVERPAYMENT

Louisiana S. No medical necessity $8,498.17

Robert M. No medical necessity $3,615.54

Mario P. No medical necessity $2,403.33

Angel S. No medical necessity $2,089.12

Ana G. No medical necessity $2,015.94

Joann N. No medical necessity $1,705.12

C. Watson No medical necessity $1,268.7 6

Yvette F. Service refused $122.16

Rosa P. Multiple $7,983.05

Medical Necessity

8. The proof was in conflict concerning the medical

necessity of the challenged home health services that Monef

provided to the foregoing patients. There were three ca tegories

of expert opinion evidence on this issue, described below.

9. The attending physicians' opinions. To be Medicaid

compensable, home health services must be provided pursuant to a

written treatment plan that is prepared individually for each

recip ient and approved by his or her attending physician. The

treatment plan —— called a "plan of care" or "plan of treatment" ——

must be reviewed and updated periodically (about every two

months) and also as the patient's condition changes.

10. A required compon ent of all plans of care is the

attending physician's certification that the services specified

in the plan are medically necessary. 1

11. The fact that a treating doctor, by prescribing,

recommending, or approving a medical service, has attested to

its m edical necessity is not sufficient, in itself, to support a

finding that the resulting care was medically necessary. See

Rule 59G - 1.010(166)(c), Florida Administrative Code.

Nevertheless, the attending physician's opinion regarding

medical necessity is r elevant evidence, even if it is not

inherently dispositive.

12. In this case, all of the services that the Agency

contends were not medically necessary had been determined to be

medically necessary by the respective patients' treating

physicians.

13. The peer - review organizations' opinions. During the

audit period, the Medicaid Program would not reimburse a home

health agency for any home visits in excess of 60 visits per

recipient per fiscal year unless the provider had obtained

authorization to provide such care, in advance, from the Agency

or its designee. Such "prior authorization" was required to be

based on medical necessity.

14. At times during the audit period the Agency was under

contract with a company called Keystone Peer Review Organization

("KePRO"), which acted as the Agency's designee in regard to

pre - approving services above the 60 - visit limit. At other times

this function was performed by Florida Medical Quality

Assurance, Inc. ("FMQAI"). In a couple of instances, the Agency

itself gav e Monef prior authorization to perform services that

it now contends were not medically necessary.

15. By statute, a peer - review organization's written

findings are admissible in an administrative proceeding as

evidence of medical necessity or lack thereo f. See Section

409.913(5), Florida Statutes.

16. Monef had obtained prior authorization based on

medical necessity for most of the services that the Agency has

challenged as medically unnecessary. The opinions of the

Agency's designees, KePRO and FMQAI, are relevant evidence of

medical necessity.

17. Dr. Sullenburger's opinion. Dr. John Sullenburger is

the Agency's Medicaid physician. He would have testified at the

final hearing as an expert witness for the Agency, but the

parties stipulated that Dr. Sullenburger's ultimate opinion,

based on the medical records, was that each of the claims that

the Agency alleges was not medically necessary was, in fact,

unnecessary.

18. By entering into this stipulation, Monef effectively

waived its right to cross - ex amine Dr. Sullenburger and thereby

expose the particular facts upon which his opinion was based.

For its part, the Agency relinquished the opportunity to have

the doctor explain the reasons why he had concluded that the

patients' attending physicians —— and also, in many instances, the

Agency's designated peer - review organizations —— had erred in

making their respective determinations that the subject services

were medically necessary.

19. As a result of the parties' stipulation concerning

Dr. Sullenburger's testimony, the factfinder was left with a

naked expert opinion that merely instructed him to decide the

ultimate factual issue of medical necessity in the Agency's

favor.

20. In making findings regarding medical necessity, the

factfinder settled on the following rules of thumb. Greatest

weight was accorded the opinions of KePRO and FMQAI. These were

deemed to have the highest probative value because the peer -

review organizations' determinations of medical necessity were

made before the services in ques tion were provided, and neither

of the Agency's designees had any discernable motive to stretch

the truth one way or the other. Certainly, the peer - review

organizations more closely resemble a disinterested, neutral

decision - maker than either the patient’ s treating physician or

the Agency's expert witness (whose opinions were formed after

the services had been rendered and the claims paid); indeed, if

anything, KePRO and FMQAI might be expected to tilt in the

Agency's direction (although there was no evide nce of such bias

in this case). 2

21. The hearsay opinions of the treating physicians, on

the one hand, and Dr. Sullenburger, on the other, were

considered to be about equally persuasive —— and none was

particularly compelling. 3 It should be stated that th e attending

physicians' certifications of medical necessity, each of which

lacked analysis that might have connected the facts concerning a

patient's medical condition with the need for services, were as

conclusory as Dr. Sullenburger's ultimate opinion.

22. Consequently, in those instances where a peer - review

organization gave Monef a mandatory prior authorization to

render services that the attending physician had certified as

being medically necessary, it has been found that, more likely

than not, the services in question were medically necessary.

23. In contrast, a closer question arose in those

instances where there was no evidence of prior authorization

when such was required. The expert opinions —— the attending

physician's on one side, Dr. Sullen burger's on the other ——

essentially canceled each other out. While ordinarily in an

evidential tie the party without the burden of proof (here,

Monef) would get the nod, in this case the Agency had the

slightest edge, on the strength of Rule 59G - 1.010(166) (c),

Florida Administrative Code. Under this Rule, an attending

physician's approval of a service is not, "in itself,"

sufficient to support a finding of medical necessity. 4 Because

of the Rule, Monef needed to introduce some additional,

persuasive evide nce ( e.g. the attending doctor's testimony

regarding the need for the service) to overcome Dr.

Sullenburger's opinion. 5

Louisiana S.

24. At the time that the services in question were

provided, from May 7, 1997, until December 20, 1997, this

patient, an obese woman in her late 60s, was being treated for

diabetes, hypertension, and coronary artery disease. She was

not able to self - administer the insulin shots that were needed

to prevent complications from diabetes.

25. For the period from May 5, 1997, th rough June 30,

1997, KePRO gave prior authorization to 53 skilled nursing

visits and 23 home health aide visits. 6 Monef was reimbursed for

42 skilled nursing visits and 23 home health aide visits

conducted in this period.

26. From July 1, 1997, until S eptember 1, 1997, Monef

provided a total of 66 combined skilled nursing and home health

aide visits to Louisiana S. The Medicaid Program paid for 60 of

them. Because these were the first 60 visits of the fiscal

year, which began on July 1, 1997, prior au thorization was

neither needed nor obtained.

27. During the period between September 1, 1997, and

November 1, 1997, Monef made 96 skilled nursing visits, out of

124 that KePRO had pre - approved, and 20 of 27 authorized home

health aide visits.

28. KePRO gave prior authorization for 124 skilled nursing

and 27 home health aide visits for the period from November 1,

1997 to January 1, 1998, of which 54 and 18, respectively, were

made.

29. Based on the levels of service that KePRO had approved

before July 1 , 1997, and then after September 1, 1997, it is

reasonable to infer, and so found, that the first 60 combined

visits to this patient in fiscal year 1997 - 98 would have been

pre - approved had Monef been required to obtain prior

authorization.

30. The home health care services that Monef provided to

Louisiana S. between May 9, 1997, and December 30, 1997, for

which the Medicaid Program paid $8,498.17, were medically

necessary.

Robert M.

31. Robert M., a man in his mid - 40s who received home

health care from Monef from November 26, 1997, through March 27,

1998, suffered from arteriosclerosis, hypertension, acute

bronchitis, and schizophrenia. His residence was an assisted

living facility ("ALF"). 7

32. FMQAI gave prior authorization for 61 skilled nursing

and 61 home health aide visits to occur between November 26,

1997, and January 26, 1998. Monef provided 55 nursing and 59

home health aide visits during this period.

33. Monef requested prior approval for 25 skilled nursing

and 63 home health aide visi ts for the period from January 26,

1998, and March 26, 1998. Although prior authorization was

needed for these services, which exceeded the limit for fiscal

year 1997 - 98, there is no evidence in the record that FMQAI

granted Monef's request for approval.

34. FMQAI authorized 23 skilled nursing visits and 30 home

health aide visits for the period from March 26, 1998, to

May 28, 1998. However, Monef provided just one skilled nursing

visit during this time, on March 27, 1998.

35. The home health care se rvices that Monef provided to

Robert M. between November 26, 1997, and January 26, 1998, and

on March 27, 1998, were medically necessary.

36. Lack of medical necessity was established, however,

for the services provided between January 26, 1998, and March

26, 1998. The Medicaid Program paid the following claims,

totaling $1,442.49, for this period: One RN visit, $34.04; 21

LPN visits, $549.99; and 51 home health aide visits (35 at

$17.46 apiece and 16 at $15.46 each), $858.46.

Mario P.

37. From November 25, 1997, through March 28, 1998,

Mario P., a septuagenarian who was being treated for acute

gastritis, an enlarged prostate, and mental illness, received

home health visits at the ALF where he lived, the services

provided by Monef.

38. FMQAI approved 43 skilled nursing and 61 home health

aide visits for the period from November 26, 1997, through

January 26, 1998; 11 skilled nursing and 62 home health aide

visits for January 26, 1998, until March 26, 1998; and 25

skilled nursing visits for March 1, 1998 , through May 1, 1998

(overlapping the immediately preceding period by about three -

and - a - half weeks).

39. The actual number of skilled nursing and home health

aide visits for which the Medicaid Program reimbursed Monef was

within the pre - approved service levels for each period.

40. The home health care services that Monef provided to

Mario P. between November 26, 1997, and March 28, 1998, for

which the Medicaid Program paid $2,403.33, were medically

necessary.

Angel S.

41. Angel S. was a man in his middl e 50s who had been

diagnosed with gastroduodenitis (an inflammation of the stomach

and duodenum) and mental illness.

42. Monef obtained prior authorization from KePRO to

provide Angel S. with 34 skilled nursing and 62 home health aide

visits between Nov ember 25, 1997, and January 25, 1998. During

this time, the Medicaid Program reimbursed Monef for 32 skilled

nursing and 44 home health aide visits.

43. FMQAI pre - approved 26 skilled nursing and 27 home

health aid visits for January 25, 1998, through Mar ch 25, 1998.

Monef was reimbursed for 20 and 21 such visits, respectively.

44. The home health care services that Monef provided to

Angel S. between November 25, 1997, and March 25, 1998, for

which the Medicaid Program paid $2,089.12, were medically

ne cessary.

Ana G.

45. When she was a client of Monef, Ana G., a woman in her

60s, was suffering from acute gastritis and major depression.

She lived in an ALF.

46. FMQAI pre - approved 50 skilled nursing visits and 40

home health aide visits for the period from November 25, 1997,

through January 25, 1998. In that time, Monef rendered 28

skilled nursing visits and 42 home health aide visits for which

it received compensation from the Medicaid Program.

47. For the period from January 25, 1998, through

Marc h 25, 1998, FMQAI gave prior authorization for 9 skilled

nursing and no home health aide visits. During this time, Monef

provided 15 skilled nursing visits and 15 home health aide

visits for which Medicaid paid.

48. The services that Monef rendered to pa tient A. Garcia

between November 25, 1997, and March 23, 1998, were medically

necessary except for 17 home health aide visits (at $17.46

apiece) and 6 skilled nursing visits (at $24.19 each), making a

total of $441.96 in overpayments.

Joann N.

49. In her late 30s at the time of the services in

question, Joann N.'s principal diagnosis was major depression.

She also suffered from hypertension and a type of diabetes.

50. Because Joann N.'s primary diagnosis was a mental

illness, the home health services pro vided to her may not have

been Medicaid - compensable due to an exclusion that bars coverage

for mental health and psychiatric services. 8 The Agency,

however, did not disallow Monef's claims on this basis, relying

instead exclusively on the allegation that the services were not

medically necessary.

51. None of the skilled nursing and home health aide

visits that Monef provide Joann N. between February 16, 1997,

and September 1, 1997, was pre - approved. There is evidence that

Monef sought KePRO's prior autho rization of 26 skilled nursing

and ten or 12 home health aide visits for the period from

April 16, 1997, to June 16, 1997, but no proof was adduced

showing that approval was granted.

52. Based on the number of combined visits that Monef

provided both b efore and after July 1, 1997 (the start of fiscal

year 1997 - 98), it does not appear that prior authorization was

required. There are no grounds in the record, however, from

which to infer that prior authorization(s) would have been given

if needed.

53. A ccordingly, lack of medical necessity was established

for all of the home health services that Monef provided Joann N,

for which the Medicaid Program paid a total of $1,705.12.

C. Watson

54. C. Watson was a teenager with cerebral palsy and

quadriplegia wh o received care in her home between May 12, 1997,

and March 31, 1998. The Agency alleges that all of the skilled

nursing services that Monef provide C. Watson were medically

unnecessary but acknowledges that the home health aide visits

were appropriate an d covered.

55. The Agency itself pre - approved the home health care

visits that Monef had requested for the period from May 12,

1997, through June 30, 1997, namely, 24 skilled nursing and 40

home health aide visits. The Medicaid Program reimbursed Monef

f or 12 skilled nursing and 38 home health aide visits made

during this period.

56. The Agency gave prior authorization for home health

care to be provided between July 1, 1997, and September 1, 1997.

FMQAI also pre - approved the following services for the same

period: five skilled nursing visits and 43 home health aide

visits. Monef was reimbursed for 17 skilled nursing visits made

during this time.

57. For the periods of September 1, 1997 to November 1,

1997; November 1, 1997 until January 1, 1998; and January 1,

1998 through March 1, 1998, KePRO pre - approved levels of skilled

nursing services (nine, four, and nine visits, respectively)

that were not exceeded by Medicaid - paid claims for these

services rendered by Monef during the subject timeframes.

58. FMQAI gave prior authorization for four skilled

nursing visits to occur between March 1, 1998 and May 1, 1998,

but Monef did not submit any claims for such services rendered

during this period.

59. L ack of medical necessity was established for 12

skilled nursing visits made during the period from July 1, 1997

through September 1, 1997. The Medicaid Program paid a total of

$319.13 for these visits (One RN visit at $31.04 and 11 LPN

visits at $26.19), and this sum constitutes an overpayment

subject to reco upment. The rest of the skilled nursing visits

that Monef furnished to C. Watson were medically necessary.

Yvette F.

60. Yvette F. was a patient in her 30s suffering from

complications relating to HIV infection. On Christmas Day,

1997, Yvette F. refus ed most of the skilled nursing services

that had been scheduled, to spend time with her family.

61. The Agency has sought to recoup the $122.16 that the

Medicaid Program paid for an RN's visit to Yvette F.'s home on

December 25, 1997. This sum reflects f our hours of service.

62. The medical records in evidence establish that the

patient's refusal of treatment occurred after the RN had arrived

at her residence, and that, despite the patient's refusal of

service, the RN did perform an assessment on Yvette F. that day.

63. The Agency failed to establish that, under these

circumstances, Monef is entitled to no reimbursement. Yet,

common sense instructs that the covered claim should not

encompass four hours of services when clearly that much time was

not spe nt on this particular visit. Unfortunately, nothing in

the record, including the parties' legal arguments, provides

guidance for resolving this particular problem.

64. In the absence both of controlling authority and

evidence of the actual time spent, th e factfinder has determined

that the claim should be equitably apportioned to do rough

justice, with Monef being compensated for one hour of service

and the balance returned to the Medicaid Program.

65. On this basis, then, lack of medical necessity has

been shown for three hours of skilled nursing services, making

an overpayment of $91.62.

Rosa P.

66. Rosa P. was a woman in her late 30s with multiple

health problems, including uncontrolled diabetes, recurring

infections, renal failure, respiratory insu fficiency, and mental

illness. Monef rendered home health care to Rosa P. from

November 22, 1996, until February 1, 1998, for which the

Medicaid Program paid $24,543.27 on 1,012 separate claims.

67. The Agency seeks to recoup a little more than one -

third of the amount previously paid to Monef for this patient's

home health care, alleging a number of grounds to disallow a

number of claims. The following table summarizes the Agency's

contentions regarding the challenged claims. ("Doc." is an

abbreviation for "documentation." "PC" is an acronym for plan

of care. The alphanumeric claim identifiers in the left - hand

column were assigned by the Administrative Law Judge for ease of

reference.)

CLAIM ID DATE(S) SERVICE(S) GROUND(S) FOR ALLEGED

DENIAL OVERPAYMEN T

RP - 1 11 - 22 - 96 Nursing No doc. $29.04

RP - 2 12 - 9 - 96, 12 - Aide No doc./POT not $52.38

10 - 96, 12 - followed (x3)

14 - 96

RP - 3 12 - 25 - 96 to Aide No PC rendered $192.06

1 - 5 - 97 (x11)

RP - 4 1 - 6 - 97, 1 - 7 - Aide POT not $104.76

97, 1 - 9 - 97, followed (x6 )

1 - 10 - 97, 1 -

11 - 97, 1 - 12 -

97

RP - 5 1 - 22 - 97 to All POT not signed $4,009.37

3 - 22 - 97 by MD or RN

RP - 6 3 - 24 - 97 to Aide No PC rendered $698.40

5 - 2 - 97 (x40)

RP - 7 5 - 2 - 97 Nursing No doc. $29.04

RP - 8 5 - 3 - 97 to 7 - Aide No PC rendered $1,032.52

4 - 97 (x62)

RP - 9 7 - 21 - 97 to Ai de POT not $87.30 9

7 - 26 - 97 followed (x6)

RP - 10 8 - 4 - 97 to 8 - Aide PC not rendered $122.22

10 - 97 (x7)

RP - 11 10 - 29 - 97 Nursing Documented only $31.04

1 of 2 billed

visits

RP - 12 11 - 3 - 97 Aide No doc. $17.46

RP - 13 11 - 4 - 97 Aide No doc. $17.46

RP - 14 11 - 14 - 97 Aide No do c. $17.46

RP - 15 11 - 15 - 97 Aide No doc. $17.46

RP - 16 11 - 16 - 97 Aide No doc. $17.46

RP - 17 11 - 22 - 97 to Aide No doc. (x10) $52.38 10

11 - 26 - 97 (2 billed

visits per day)

RP - 18 12 - 1 - 97 Aide No doc. $17.46

RP - 19 12 - 2 - 97 Aide No doc. $17.46 11

RP - 20 12 - 3 - 97 Aide No doc. $17.46

RP - 21 12 - 28 - 97 to Nursing POT not signed $1,724.37

2 - 28 - 98 by MD or RN

The total of these alleged overpayments, without adjustment for

the several minor arithmetic or typographical errors in the

Agency’s papers, see endnotes 9 - 11, is $7,9 83.05. Each claim

or claim set will be addressed in turn below.

68. RP - 1. The medical records contain a "Time Record

Nursing Progress Note" dated November 22, 1997, that documents a

skilled nursing visit to the patient on that day. Therefore,

the Agenc y failed to prove its allegation of overpayment

regarding RP - 1.

69. RP - 2. Included in the patient's records is a "Weekly

Activity Report and Time Slip" for the week beginning Monday,

December 9, 1996, that was filled out by the home health aide

who cared for Rosa P. during that seven - day period. To keep

track of tasks performed, the form instructed the aide to check

boxes in a table that cross - referenced particular duties ( e.g.

oral hygiene, change linens, turn & position), which are

described in the lef t - hand column, with the days of the week,

which are listed, Monday through Sunday, in the top row.

70. For the days in question (December 9, 10, and 14,

1996), the aide checked boxes showing that, among other things,

she had given the patient a shower and assisted her in a

wheelchair, both of which are Medicaid - covered services. See

Paragraphs 133, 137, infra .

71. Handwritten notes inscribed on the Agency's work

papers next to each of the three dates at issue state: "only

p/c [personal care] [is a] shower —— not following POT [plan of

treatment]." The first of these points is incorrect:

assistance with a wheelchair, like showering a patient, is a

covered home health aide service.

72. The plan of care that covered the subject dates

disproves the se cond assertion. The written treatment plan

explains that the home health aide will "provide personal care,

asst [assist] [with] ADL's [activities of daily living]

including bath, skin/foot care." The aide was following this

course of action on December 9 , 10, and 14, 1996.

73. The Agency did not prove an overpayment in connection

with RP - 2.

74. RP - 3. The Agency seeks to recoup payments of $17.46

apiece for 11 home health aide visits made between December 25,

1996 and January 5, 1997, on the ground that the aide did not

perform any covered personal services. Although a dozen such

visits were made during this particular period, the Agency's

work papers reveal that the claim for services rendered on

December 29, 1996, was approved.

75. The aide's time sh eets for the relevant period

substantiate the Agency's allegation, with one exception. The

aide's entry on December 26, 1996, is identical to that of

December 29, 1996, the latter which the Agency correctly deemed

sufficient to make Medicaid financially r esponsible. On both

days, the aide helped the patient with a tub bath and shampoo,

which are covered personal services.

76. For the other ten days, review of the aide's time

sheets reveals that many services were rendered in the category

of "light hous ekeeping" and "meal preparation." These fall

within the exclusion for "housekeeping, homemaker, and chore

services, including shopping" and hence are not covered

services. Handbook, at p. 2 - 6; see also Rule 59G - 4.130(8)(a)2.,

Florida Administrative Code (1996). 12 (Curiously, the Agency did

not specifically rely upon this exclusion.)

77. In its Proposed Recommended Order, Monef points out

that the aide made a written notation each day concerning the

patient's voiding of bowel and bladder. Because the non -

exclusive list of covered home health aide services included

"toileting and elimination," see Rule 59G - 4.130(5)(b)3.b.,

Florida Administrative Code (1996), it is possible that the aide

was providing a compensable service during the period in

question. Th e trouble is, it cannot be determined from the

evidence whether the aide actually assisted the patient —— or

whether the aide merely wrote down on the time sheet what had

been observed regarding the patient's use of the bathroom

facilities.

78. Although the question is close, it is determined that

simply observing and commenting daily about the patient's

elimination of bodily wastes is not enough, without more, to

constitute a Medicaid - compensable home health aide service. 13

Being unable on the present recor d to find that the aide did

more than watch and write, it is determined that covered

services in the area of "toileting and elimination" were not

persuasively shown to have occurred.

79. Consequently, lack of medical necessity has been

established as to 1 0 home health aide visits. The total

overpayment on RP - 3 is $174.60.

80. RP - 4. For the week from Monday, January 6 through

Sunday, January 12, 1997, the Agency alleges that six home

health aide visits are not covered because the aide failed to

follow th e plan of treatment. Notations on the Agency's work

papers suggest another basis: "only shower - incomplete,"

meaning, presumably, that the only covered personal care

provided was assistance in the shower. See discussion regarding

RP - 2, supra .

81. The aide's time sheet for the relevant period

contradicts the Agency's contention. First, bathing assistance

was not the only covered personal care rendered on the days in

question. The aide also helped the patient with her wheelchair,

which is a service cov ered under the rubric of "transfer and

ambulation." Rule 59G - 4.130(5)(b)3.e., Florida Administrative

Code (1996).

82. Second, the aide's entry for January 8, 1997 —— for

which claim the Agency is not seeking to recover —— is

substantially the same as those f or the challenged days. The

only material difference is that on January 8 the aide checked

the box indicating that she had shampooed the patient's hair.

Nothing in the Rule or the Handbook, however, provides that a

shower with shampoo is covered but a sh ower without shampoo is

excluded from coverage, and the Agency failed to prove a factual

basis, or advance a logical one, for drawing such distinction.

83. Consequently, the Agency did not establish an

overpayment with regard to RP - 4.

84. RP - 5. The me dical records in evidence contain a "Home

Health Certification and Plan of Care" for Rosa P. that was

signed and dated, on January 22, 1997, by the RN and by the

patient's attending physician, Dr. John Prior. This plan of

care covers the period from Janua ry 22, 1997 through March 22,

1997.

85. The Agency did not present any evidence that either

the doctor's or the nurse's signature appearing on this form are

inauthentic or that either or both failed to sign on January 22,

1997, as recorded.

86. Therefore , the Agency's allegation that the plan of

treatment for the period in question is invalid was not proved.

87. RP - 6. This claim set encompasses five full weeks plus

five days of home health aide service, or 40 visits in all. The

Agency alleges that no c overed personal care was provided during

these visits.

88. The time sheets demonstrate that the aide provided a

covered service, namely assistance in the shower, on all days

between March 24, 1997 and April 6, 1997, and also on the five

days from April 28 through May 2, 1997. The Agency therefore

failed to prove its allegation as to these 19 visits.

89. The Agency made its case, however, in connection with

the remaining 21 visits from April 7 to April 27, 1997,

inclusive. The time sheets for these dat es do not adequately

document the provision of a covered service. 14

90. Accordingly, lack of medical necessity was established

for 21 home health aide visits at $17.46 each, making a total

overpayment on RP - 6 of $366.66.

91. RP - 7. The Agency has sought to recover payment of

$29.04 for an RN visit to the patient on May 2, 1997, alleging

lack of documentation.

92. The medical records show that on this particular date,

an LPN treated the patient from 8:00 a.m. to 8:45 a.m. Later

that same day, at 5:00 p.m ., an RN arrived to provide care,

which she did, afterwards leaving the patient’s residence at

5:45 p.m. These two visits are documented in separate "Time

Record Nursing Progress Note" forms. The Agency did not

establish that the nursing notes are inauth entic or incredible. 15

93. Thus, the allegation regarding RP - 7 was not proved.

94. RP - 8. The Agency contends that 62 home health aide

visits between May 3, 1997, and July 4, 1997, were not

compensable because no covered personal care was provided.

95. T he aide's time sheets establish that a covered

personal care (assistance in the shower) was given on May 3

through May 17, inclusive (15 visits at $17.46 apiece), and also

on June 20 through 22, 1997 (three visits at $17.46 each).

Shower assistance was al so provided on May 26 through June 1,

1997 (seven visits at $15.46 each). Skin care, a covered

service, was provided on June 7, 1997 (one visit, $15.46). And

ambulation assistance, a covered personal care service, was

rendered on seven visits from June 9 , 1997, through June 15,

1997, at $15.46 per visit.

96. For the remaining 29 visits, however, the aide's time

sheets fail adequately to document the provision of a covered

service. Ten of these visits were billed at $15.46, the others

at $17.46 apiece.

9 7. Thus, with respect to RP - 8, the Agency established an

overpayment of $486.34.

98. RP - 9. This claim set involves six home health aide

visits on the dates of July 21 through July 26, 1997, inclusive,

during which, the Agency alleges, the plan of treatm ent was not

obeyed. (The Agency did not seek to recoup the payment made for

aide services rendered on Sunday, July 27, 1997, even though

that date’s visit is included within the same time sheet as the

Monday through Saturday visits, and the services rende red on

July 27 were identical to those performed earlier in the week.)

99. According to the pertinent time sheet, covered

personal care services (bathing and assistance with ambulation)

were provided in connection with the challenged claims.

Further, the plan of treatment in effect at that time stated

that the aide would "assist with personal care, ambulation,

prepare meals, grocery shop, wash clothes, [and] straighten

bedside unit." The time sheet establishes that the aide

complied with these instruc tions.

100. Accordingly, the Agency failed to prove its

allegation regarding RP - 9.

101. RP - 10. The Agency alleges that none of the home

health aide visits from August 4 through August 10, 1997,

entailed covered personal care services.

102. The aide's t ime sheet for that week, however,

documents that bathing care, specifically showering, was

provided. Because showering the patient is clearly a covered

item, the Agency failed to carry its burden of proof in respect

of RP - 10.

103. The patient's medical r ecords contain two "Time

Record Nursing Progress Note" forms dated October 29, 1997,

which document separate RN visits on that date, one lasting from

4:30 p.m. to 5:15 p.m., the other from 6:00 p.m. until 7:40

p.m.

104. The Agency therefore did not est ablish, by a

preponderance of evidence, its allegation that Monef had

provided documentary support for only of one of two nursing

visits on October 29, 1997.

105. RP - 12, - 13, - 14, - 15, and - 16. The Agency alleges

that these five home health aide visits, occurring over a two -

week period from November 3, 1997 to November 16, 1997, are not

adequately documented.

106. The visits of Monday, November 3, and Tuesday,

November 4, 1997, which the Agency challenges, are reported on

the same time sheet as those of November 5 through 9, 1997,

which the Agency accepts. The duties performed on each of these

days, both challenged and unchallenged, were identical, except

that on November 4 and 8 the aide shampooed the patient.

Numerous covered personal care services we re rendered each day

during the week, including bathing, oral hygiene, skin care, and

assistance with ambulation.

107. The duty descriptions on the aide's time sheet for

the week beginning Monday, November 10, 1997 —— a week that

included three challenged visits (November 14 through 16) —— are

substantially similar to one another (though the Agency accepted

claims for November 10 through 13) and nearly identical to those

given for the preceding week. Once again, covered personal care

services rendered consi stently throughout the week of

November 10 to 16, 1997, included bathing, oral hygiene, skin

care, and ambulation assistance.

108. The evidence, therefore, does not support the

Agency's allegation that the services in question were not

adequately docum ented.

109. RP - 17. The Agency alleges that home health aide

visits made from November 22 through November 26, 1997, were not

documented. The medical records demonstrate that one such visit

per day was provided, for a total of five. The records show

fu rther, however, that Monef was reimbursed for two visits for

each of the days in question, receiving double the amount to

which it was entitled based on the documented number of visits.

110. The Agency, therefore, has proved an overpayment of

$87.30 (fi ve visits at $17.46 apiece).

111. RP - 18, - 19, and - 20. The Agency contends that there

is insufficient documentation for home health visits on

December 1 through 3, 1997. But the aide's time sheet for the

week beginning Monday, December 1, 1997, adeq uately establishes

that such visits actually occurred —— and that covered personal

care services (bathing, oral hygiene, skin care, and ambulation

assistance) were provided during each of them.

112. However, as with RP - 17, the records show that Monef

was reimbursed for two visits for each of the days in question,

receiving double the amount to which it was entitled based on

the documented number of visits.

113. The Agency, therefore, has proved an overpayment of

$50.38 (two visits at $17.45 apiece and o ne billed at $15.46)

with regard to RP - 18, RP - 19, and RP - 20.

114. RP - 21. The Agency seeks to recover payments for all

nursing services rendered from December 28, 1997 through

February 28, 1998, on the ground that the plan of treatment for

the subject period was not signed and dated by the attending

physician, as required.

115. In fact, the pertinent treatment plan was signed by a

Dr. Roxana Lopez, and by the RN. Neither signature, however,

was dated. Thus, the Agency is correct in its assertion that

the plan of treatment is deficient.

116. But, the record also contains a letter from KePRO

dated December 29, 1997, which grants prior authorization for

124 skilled nursing and 61 home health aide visits for the

period from December 28, 1997 through Fe bruary 28, 1998.

According to this letter, Monef's request for pre - approval was

made on December 22, 1997.

117. One of the items that must be submitted to the peer -

review organization with a request for prior authorization is

the written plan of treatmen t. Thus, it is reasonable to infer,

and so found, that KePRO had in its possession the deficient

plan of treatment and, in granting prior authorization,

overlooked the fact that the doctor had not dated her signature.

118. Monef did not urge that KePRO's pre - approval of the

services in question effected a waiver of the Agency's right to

disallow the ensuing claims based on what is, in these

circumstances, clearly a technicality, 16 or that the Agency

should be estopped from raising this particular objection ,

although little imagination is required to perceive the

potential merit in either argument.

119. It is not necessary to reach waiver or estoppel

issues, however, for KePRO's approval letter establishes

persuasively that the doctor and the nurse signed the plan of

treatment before December 29, 1997 —— and hence at or before the

start of care and services thereunder. Plainly, in other words,

the attending physician timely approved the plan of treatment,

even though she failed to date her signature.

120. Under the particular facts of this case, therefore,

where the treatment plan is in substantial compliance with the

requirements, and neither the Medicaid Program nor the patient

suffered any conceivable prejudice as a result of a demonstrably

harmless (o n these facts) and unintentional deficiency, it is

determined that the Agency has failed to prove a sufficient

basis to recoup payments totaling $1,724.37 for pre - approved,

medically necessary services that were actually provided to an

eligible patient.

12 1. The following table summarizes the foregoing findings

relating to claims for services to Rosa P.

CLAIM ID DATE(S) SERVICE(S) GROUND(S) FOR ACTUAL

DENIAL OVERPAYMENT

RP - 1 11 - 22 - 96 Nursing No doc. $0

RP - 2 12 - 9 - 96, 12 - Aide No doc./POT no t $0

10 - 96, 12 - followed (x3)

14 - 96

RP - 3 12 - 25 - 96 to Aide No PC rendered $174.60

1 - 5 - 97 (x11)

RP - 4 1 - 6 - 97, 1 - 7 - Aide POT not $0

97, 1 - 9 - 97, followed (x6)

1 - 10 - 97, 1 -

11 - 97, 1 - 12 -

97

RP - 5 1 - 22 - 97 to All POT not signed $0

3 - 22 - 97 by MD or RN

RP - 6 3 - 24 - 97 to Aide No P C rendered $366.66

5 - 2 - 97 (x40)

RP - 7 5 - 2 - 97 Nursing No doc. $0

RP - 8 5 - 3 - 97 to 7 - Aide No PC rendered $486.34

4 - 97 (x62)

RP - 9 7 - 21 - 97 to Aide POT not $0

7 - 26 - 97 followed (x6)

RP - 10 8 - 4 - 97 to 8 - Aide PC not rendered $0

10 - 97 (x7)

RP - 11 10 - 29 - 97 Nursing Documente d only $0

1 of 2 billed

visits

RP - 12 11 - 3 - 97 Aide No doc. $0

RP - 13 11 - 4 - 97 Aide No doc. $0

RP - 14 11 - 14 - 97 Aide No doc. $0

RP - 15 11 - 15 - 97 Aide No doc. $0

RP - 16 11 - 16 - 97 Aide No doc. $0

RP - 17 11 - 22 - 97 to Aide No doc. (x10) $87.30

11 - 26 - 97 (2 billed

visits per day)

RP - 18 12 - 1 - 97 Aide No doc. $17.46

RP - 19 12 - 2 - 97 Aide No doc. $15.46

RP - 20 12 - 3 - 97 Aide No doc. $17.46

RP - 21 12 - 28 - 97 to Nursing POT not signed $0

2 - 28 - 98 by MD or RN

The Agency, in sum, proved overpayments totaling $1,165.28 in

relation to Rosa P.

The Bottom Line

122. The Agency established that Monef received

overpayments in connection with six patients. The following

table summarizes these overpayments.

PATIENT NAME GROUND(S) FOR DENIAL OVERPAYMENT

Robert M. No medical necessity $1,4 42.49

Ana G. No medical necessity $441.96

Joann N. No medical necessity $1,705.12

C. Watson No medical necessity $319.13

Yvette F. Service refused $91.62

Rosa P. Multiple $1,165.28

Accordingly, the Agency is entitled to recover from Monef the

princ ipal sum of $5,165.60.

CONCLUSIONS OF LAW

123. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

124. The burden of establishing an alleg ed Medicaid

overpayment by a preponderance of the evidence falls on the

Agency. South Medical Services, Inc. v. Agency for Health Care

Administration , 653 So. 2d 440, 441 (Fla. 3d DCA 1995);

Southpointe Pharmacy v. Department of Health and Rehabilitative

Services , 596 So. 2d 106, 109 (Fla. 1st DCA 1992).

125. Although the Agency bears the ultimate burden of

persuasion and thus must present a prima facie case through the

introduction of competent substantial evidence before the

provider is required to resp ond, Section 409.913(21), Florida

Statutes, provides that "[t]he audit report, supported by agency

work papers, showing an overpayment to the provider constitutes

evidence of the overpayment." Thus, the Agency can make a prima

facie case merely by proffer ing a properly supported audit

report, which must be received in evidence. See Maz

Pharmaceuticals, Inc. v. Agency for Health Care Administration ,

DOAH Case No. 97 - 3791, 1998 WL 870139, *2 (Recommended Order

issued Mar. 20, 1998); see also Full Health Car e, Inc. v. Agency

for Health Care Administration , DOAH Case No. 00 - 4441, 2001 WL

729127, *8 - 9 (Recommended Order issued June 25, 2001).

126. In addition, Section 409.913(21), Florida Statutes,

heightens the provider's duty of producing evidence to meet th e

Agency's prima facie case, by requiring that the provider come

forward with written proof to rebut, impeach, or otherwise

undermine the Agency's statutorily - authorized evidence; it

cannot simply present witnesses to say that the Agency lacks

evidence or is mistaken.

127. The pertinent statutes, rules, Handbook, and Medicaid

Provider Reimbursement Handbook that were in effect during the

audit period govern this dispute. See Toma v. Agency for Health

Care Administration , DOAH Case No. 95 - 2419, 1996 WL 10 59900, *23

(Recommended Order issued July 26, 1996) (adopted in toto,

Sept. 24, 1996, 18 F.A.L.R. 4735).

128. The relevant provisions of the governing statutes,

rules, and Handbook (which were cited and, at times, quoted in

the foregoing Findings of Fact ) are clear and unambiguous as a

matter of law, capable of being relied upon, and applied to the

historical events at hand, without a simultaneous examination of

extrinsic evidence or resort to principles of interpretation.

129. Accordingly, some findin gs of fact followed directly

from the unambiguous language of Rule 59G - 4.130, Florida

Administrative Code (1996); the plain provisions of Section

409.913, Florida Statutes; and the clear terms of the Handbook.

To the extent these fact findings are deemed to constitute or

reflect legal conclusions, they are hereby incorporated by

reference as if set forth in this Conclusions of Law section of

the Recommended Order and adopted as such.

130. The fact findings also were informed by several

statutory, rule, a nd Handbook provisions that were not set forth

at length in Findings of Fact above. The most important of

these are quoted below.

131. Section 409.913, Florida Statutes (1997), provides in

pertinent part:

(1) For purposes of this section, the

term:

* * *

(c) "Medical necessity" or "medically

necessary" means any goods or services

necessary to palliate the effects of a

terminal condition, or to prevent, diagnose,

correct, cure, alleviate, or preclude

deterioration of a condition that threat ens

life, causes pain or suffering, or results

in illness or infirmity, which goods or

services are provided in accordance with

generally accepted standards of medical

practice. For purposes of determining

Medicaid reimbursement, the agency is the

final a rbiter of medical necessity.

Determinations of medical necessity must be

made by a licensed physician employed by or

under contract with the agency and must be

based upon information available at the time

the goods or services are provided.

* * *

(5) A Medicaid provider is subject to

having goods and services that are paid for

by the Medicaid program reviewed by an

appropriate peer - review organization

designated by the agency. The written

findings of the applicable peer - review

organization ar e admissible in any court or

administrative proceedings as evidence of

medical necessity or the lack thereof.

* * *

(7) When presenting a claim for payment

under the Medicaid program, a provider has

an affirmative duty to supervise the

provisi on of, and be responsible for, goods

and services claimed to have been provided,

to supervise and be responsible for

preparation and submission of the claim, and

to present a claim that is true and accurate

and that is for goods and services that:

* * *

(b) Are Medicaid - covered goods or

services that are medically necessary.

* * *

(f) Are documented by records made at the

time the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendere d. Medicaid goods

or services are excessive or not medically

necessary unless both the medical basis and

the specific need for them are fully and

properly documented in the recipient's

medical record.

* * *

(10) The agency may require repayme nt for

inappropriate, medically unnecessary, or

excessive goods or services from the person

furnishing them, the person under whose

supervision they were furnished, or the

person causing them to be furnished.

132. Rule 59G - 1.010(166), Florida Administrat ive Code,

amplifies the statutory definition of medical necessity and

provides:

"Medically necessary" or "medical

necessity" means that the medical or allied

care, goods, or services furnished or

ordered must:

(a) Meet the following conditions:

1 . Be necessary to protect life, to

prevent significant illness or significant

disability, or to alleviate severe pain;

2. Be individualized, specific, and

consistent with symptoms or confirmed

diagnosis of the illness or injury under

treatment, and not in excess of the

patient's needs;

3. Be consistent with generally accepted

professional medical standards as determined

by the Medicaid program, and not

experimental or investigational;

4. Be reflective of the level of service

that can be safely fur nished, and for which

no equally cost effective and more

conservative or less costly treatment is

available statewide;

5. Be furnished in a manner not primarily

intended for the convenience of the

recipient, the recipient's caretaker, or the

provider.

(b) "Medically necessary" or "medical

necessity" for inpatient hospital services

requires that those services furnished in a

hospital on an inpatient basis could not,

consistent with the provisions of

appropriate medical care, be effectively

furnished mo re economically on an outpatient

basis or in an inpatient facility of a

different type.

(c) The fact that a provider has

prescribed, recommended, or approved medical

or allied care, goods, or services does not,

in itself, make such care, goods or servic es

medically necessary or a medical necessity

or a covered service.

133. Rule 59G - 4.130(5), Florida Administrative Code

(1996), in effect during the audit period, provided as follows:

Covered Services. The following in - home

services are covered under t he fee - for -

service home health program.

* * *

(b) Home health aide visits.

1. To be reimbursed, home health aide

visits, to children or adults, must be:

a. Medically necessary, prescribed by the

attending physician and provided in

accordance wi th a physician - approved written

treatment plan; and

b. Provided under the supervision of a

registered nurse;

2. The tasks required to be performed by

the home health aide must be specified in

writing by the registered nurse and must be

consistent with th e physician approved plan

of treatment.

3. Examples of services that require the

skills of a home health aide included:

a. Bathing, (includes tub, shower or bed

bath);

b. Toileting and elimination;

c. Nail and skin care;

d. Oral hygiene;

eansfer and ambulation;

f. Range of motion and positioning; and

g. Oral feeding and fluid intake.

134. Rule 59G - 4.130(6), Florida Administrative Code

(1996), which dealt with “Service Limitations,” provided, in

part, as follows:

(a) Home visits are limited t o no more than

three licensed nurse visits and one home

health aide visit per day per eligible

recipient. The licensed nurse visits shall

be the lowest skill level that will

adequately and appropriately meet the needs

of the recipient.

(b) Home health vi sits are limited to a

maximum of 60 visits per fiscal year. An

exception to the maximum limit on home

health visits shall be granted only by prior

authorization from the agency or agency

designees, based on medical necessity.

135. Rule 59G - 4.130(7), Fl orida Administrative Code

(1996), contained the following relevant provisions pertaining

to plans of treatment:

(a) All services furnished under the fee -

for - service home health program must be

furnished in accordance with an

individualized written plan of treatment

established by the attending physician.

Services which are provided before the

attending physician signs the treatment plan

shall be considered to be provided under a

plan established and approved by the

attending physician where there is a sig ned

verbal order from the physician for the

service(s) documented in the medical record.

The plan of treatment must be signed and

dated by he recipient's attending physician

within 14 days of the start of care and

services.

* * *

(c) . . . . Th e plan must be reviewed at

least every 62 days and when the condition

of the recipient changes.

(d) The treatment plan must specify:

* * *

5. Certification of medical necessity for

in - home services[.]

* * *

(e) The treatment plan mus t be personally

signed and dated by the attending physician.

136. Rule 59G - 4.130(8), Florida Administrative Code

(1996), set forth exclusions from Medicaid coverage, as follows:

(a) The following services are excluded

from coverage under the fee - fo r - service home

health program:

ansportation;

2. Housekeeping and chore services not

related to medical necessity;

3. Mental health and psychiatric services;

4. Escort services;

5. Social services;

6. Meals on wheels;

7. Normal newborn services;

8. Hearing aide services;

9. Therapy services for recipients 21 years

and older; and

10. Private duty nursing or personal care

services for recipients 21 years and older;

and

11. Home health services provided to

recipients residing in community reside ntial

homes, adult congregate living facilities

(ACLFs), foster care facilities, group

homes, intermediate care facilities for the

mentally retarded/developmentally disabled

(ICF/MR - DD), nursing facilities, or

hospitals when those services duplicate

servic es that are required to be provided by

such residents, facilities or institutions.

137. The Handbook defined Medicaid compensable home health

aide services to include:

· assisting with the change of a colostomy

bag;

· assisting with transfer or ambulati on;

· reinforcing a dressing;

· assisting the individual with prescribed

range of motion exercises which have been

taught by the RN;

· assisting with an ice cap or collar;

· conducting urine test for sugar, acetone

or albumin;

· measuring and preparing special diets ; and

· providing oral hygiene.

Handbook, at p. 2 - 8.

138. The Handbook listed the following services for which

Medicaid would not pay:

· audiology services;

· housekeeping, homemaker, and chore

services, including shopping;

· meals - on - wheels;

· mental health and psychiatric services;

· normal newborn services;

· respite care;

· services which can be safely, effectively

and efficiently obtained outside the

recipient's place of residence;

· services provided by a family member or

the caregiver, including baby - sitting;

· serv ices to a recipient in a community

residential facility when those services

duplicate services the facility or

institution is required to provide;

· social services;

· transportation services.

Handbook, at p. 2 - 6.

139. As set forth in the Findings of Fa ct above, upon

review of the relevant rules, statutes, and Handbook provisions,

as applied to the facts at hand, it has been determined as a

matter of ultimate fact that the Agency established the

existence of Medicaid overpayments to Monef totaling $5,165 .60.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency enter a final order

requiring Monef to repay the Agency the principal amount of

$5,165.60.

DONE AND ENTERED this 14th day of November, 20 01, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hear ings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of November, 2001.

ENDNOTES

1 / The Rule in effect during the audit period required that a

treatment plan specify, among other things, "[c]ertification of

medical necessity for the in - home services." Rule 59G -

4.130(7)(d)5., Florida Administra tive Code (1996). Accordingly,

the approved plan of treatment form, entitled "Home Health

Certification and Plan of Care," included a box, which was

located next to the line for the attending physician's

signature, that contained the following language:

I certify/recertify that this patient is

confined to his/her home and needs

intermittent skilled nursing care, physical

therapy and/or speech therapy or continues

to need occupational therapy. The patient

is under my care, and I have authorized the

servic es on this plan of care and will

periodically review the plan.

In addition, the form warned that "[a]nyone who misrepresents,

falsifies, or conceals essential information required for

payment of Federal funds may be subject to fine, imprisonment,

or civil penalty under applicable Federal laws.

2 / The Agency sought to diminish the significance of the peer -

review organizations' findings by (a) emphasizing the undisputed

fact that prior authorization is not based upon the patient's

entire medical record an d (b) arguing, correctly, that a peer -

review organization's determination of medical necessity is not

binding on the Agency. See Section 409.913(1)(c), Florida

Statutes ("For purposes of determining Medicaid reimbursement,

the agency is the final arbiter of medical necessity."). These

separate but interrelated points merit discussion.

Concerning the data upon which prior authorizations are

based, the Agency's position is accurate but, without more, is

not a persuasive basis for discounting the peer revi ew

organizations' opinions. This is because a peer - review

organization acts on behalf, and under the direction, of the

Agency. The Agency obviously can dictate to its designee the

nature and scope of information that a provider must submit to

obtain pre - approval. Thus, while it is true that providers

requesting prior authorization are not required to submit

complete medical files, it is equally true that the required

information comprises all that the Agency considers to be

sufficient for a meaningful pr e - determination of medical need ——

otherwise, there would be little point in requiring prior

authorization.

That said, the legislature plainly has granted the Agency

the power to second - guess a peer - review organization. Several

circumstances in which th e Agency might legitimately disregard a

prior authorization come quickly to mind. First, a particular

patient's complete file could contain information that, if known

to the peer - review organization, reasonably would have affected

the finding of medical n ecessity. Second, it is possible that a

provider might have misled the peer - review organization by

misrepresenting or omitting material facts. Third, the Agency

might genuinely disagree with the peer - review organization,

reaching a different, but logical ly and factually sustainable,

conclusion based upon the same required data that were made

available to the designee.

But the Agency cannot be allowed arbitrarily to exercise

its authority to overrule the peer - review organization. In a

formal administrat ive hearing, the Agency must prove one of the

foregoing (or some other reasonable) grounds in support of a

determination that the peer - review organization's finding of

medical necessity should be given less weight than the Agency's

contrary conclusion.

In this case, a preponderance of evidence shows that Monef

provided to the peer - review organizations all of the required

information, and that the data it submitted were true; Monef, in

other words, was blameless in terms of its compliance with the

proced ures for prior authorization. The Agency failed to

demonstrate, for any patient, that additional information in the

medical records, not provided to the peer - review organization,

would have made a difference in the assessment that led to prior

authorizati on. The Agency likewise failed to establish any

reasons for its many disagreements with the peer - review

organizations' findings of medical necessity. In short, the

Agency failed to undermine the prior authorizations or otherwise

justify departing from th em.

3 / By stipulating to the summary presentation of Dr.

Sullenburger's ultimate opinion, which obviated the need for his

taking the stand, Monef waived the hearsay objection. As for

the attending physicians' certifications of medical necessity

(and th e peer - review organizations' prior authorizations), these

were all contained within the exhibits that the Agency, without

objection, moved unqualifiedly into evidence. Having offered

the proof, the Agency waived any hearsay objections it might

otherwise h ave asserted. See Ohler v. United States , 529 U.S.

753, 755, 120 S.Ct. 1851, 1853 (2000)("Generally, a party

introducing evidence cannot complain on appeal that the evidence

was erroneously admitted."). Put another way, the Agency cannot

successfully arg ue that its own exhibits are insufficient to

support findings of fact —— not, at least, where the documents

were introduced without any expressed limitations of purpose.

This situation is clearly distinguishable from that which arises

when the party against whom hearsay was offered, having failed

timely to object at hearing, subsequently challenges a fact

finding based on the "unobjected - to hearsay." See Harris v.

Game and Fresh Water Fish Commission , 495 So. 2d 806, 808 (Fla.

1st DCA 1986)(notwithstanding appellant's failure to object at

hearing to introduction of hearsay evidence, agency's order was

reversed because findings were based solely on inadmissible

hearsay); Scott v. Department of Professional Regulation , 603

So. 2d 519, 520 (Fla. 1st DCA 1992)(a ppellant's failure to

appear at hearing did not preclude her from successfully raising

hearsay objection on appeal); but see Tri - State Systems, Inc. v.

Department of Transportation , 500 So. 2d 212, 215 (Fla. 1st DCA

1986), rev. denied , 506 So. 2d 1041 (198 7)("[A]s unobjected - to

hearsay the testimony became part of the evidence in the case

and was usable as proof just as any other evidence, limited only

by its rational persuasive power.")

4 / Rule 59G - 1.010(166)(c), Florida Administrative Code,

provides: " The fact that a provider has prescribed,

recommended, or approved medical or allied care, goods, or

services does not, in itself, make such care, goods or services

medically necessary or a medical necessity or a covered

service."

5 / Monef elicited the t estimony of its owner and Director of

Nursing, Nse Essiet, R.N., on the medical necessity for some of

the services in question. Unfortunately for Monef, Ms. Essiet

was not called as an expert witness, and, more important, her

testimony lacked specificity. Although Ms. Essiet appeared as a

lay witness, that alone would not have precluded the trier from

relying upon her testimony as against that of the Agency's

expert. See Weygant v. Fort Meyers Lincoln Mercury, Inc. , 640

So. 2d 1092, 1094 (Fla. 1994)("[W] hen jurors are faced with lay

testimony which is in conflict with expert medical testimony, it

is within their province to reject the expert testimony and base

their verdict solely on the lay testimony."). Here, however,

the factfinder ultimately determin ed that Ms.Essiet's testimony,

though believable, was not sufficiently persuasive, taken as a

whole, to refute the Agency's contrary expert opinion evidence,

as presented through the parties' stipulation.

6 / The term “skilled nursing” is used herein to refer,

collectively, to RN and LPN visits. Almost uniformly, the prior

authorizations given for the services at issue in this case were

specifically for RN visits rather than LPN visits, yet in actual

practice the latter significantly outnumbered the form er.

Because the Rule in effect at the time limited Medicaid coverage

for nurse visits to “the lowest skill level that will adequately

and appropriately meet the needs of the recipient,” see Rule

59G - 4.130(6)(a), Florida Administrative Code (1996), it is

u nderstandable that Monef frequently used LPNs in place of RNs.

None of the disputed claims, it should be noted, involved

Monef’s use of RNs to carry out pre - approved LPN visits, which

(unlike the reverse situation at hand) would raise serious

coverage que stions. There being no basis in the record for

distinguishing between RN visits and LPN visits for present

purposes, then, the inclusive term “skilled nursing” is

appropriate.

7 / Several of the patients for whom Monef provided the

challenged services li ved in ALFs, and this fact in many

instances appears to have been a factor, if not a decisive one,

in the Agency’s determinations that these patients received care

that was not medically necessary. As the applicable Home Health

Services Coverage and Limit ations Handbook (“Handbook”) makes

clear, however, ALFs were among the places of residence where a

person could live and be eligible for home health services under

the Medicaid Program. Handbook, at p. 2 - 3; see also Rule 59G -

4.130(3)(a)2., Florida Adminis trative Code (1996). Thus, the

fact that a patient lived in an ALF could not, without more,

justify a finding that home health services provided him were

not medically necessary. Further, while there was, as would be

expected, an exclusion for home healt h services provided to ALF

residents that duplicated services which the facility was

required to provide, see Rule 59G - 130(8)(a)11., Florida

Administrative Code (1996), the Agency did not invoke this

exclusion, nor did it prove such duplication of services in

regard to any patient.

8 / See Handbook, at p. 2 - 6; see also Rule 59G - 4.130(8)(a)3.,

Florida Administrative Code (1996).

9 / Based on the number of visits during the referenced period

and amount paid for each claim, the alleged overpayment should

be $104.76.

10 / Based on the number of visits during the referenced period

and amount paid for each claim, the alleged overpayment should

be $174.60.

11 / Monef was reimbursed $15.46 for this visit.

12 / Meal preparation would be covered if the task en tailed the

"measuring and prepar[ation] [of a] special diet[]." Handbook,

at p. 2 - 8. None of the medical records, documents, or other

evidence, however, suffices to show that this patient —— or any of

the others —— received special meals.

13 / Neither the a pplicable Rule nor the Handbook describes the

services that comprise "toileting and elimination." For

guidance, the undersigned reviewed Rule 59A - 8.002(3)(f), Florida

Administrative Code, which defines the term "toileting" in a

different, but related, reg ulatory context. There, "toileting"

is enumerated as one of the chores that a home health aide may

perform when providing "assistance with activities of daily

living" and is defined to mean:

Reminding the patient about using the

toilet, assisting him to the bathroom,

helping to undress, positioning on the

commode, and helping with related personal

hygiene, including assistance with changing

of an adult brief. Also includes assisting

with positioning the patient on the bedpan,

and helping with related per sonal hygiene.

Rule 59A - 8.002(3)(f), Florida Administrative Code. Recognizing

that this Rule does not control the instant dispute, the

undersigned nevertheless found persuasive the fact that this

broad definition of "toileting" makes no mention of observ ing

and commenting upon the patient's use of the toilet.

14 / On these days, the aide performed some unspecified task in

connection with the patient's movement that was reported simply

as "other" on the time sheet. Without more detail, however,

this is n ot sufficient evidence of a covered service, because

the factfinder can only guess at what assistance, if any, the

aide may have provided the patient.

15 / In its Proposed Recommended Order, Monef declared that it

was unable to refute the Agency's positio n on this alleged

overcharge. Having determined before receiving Monef's post -

hearing papers that the Agency's allegation regarding this

payment was not true, however, the undersigned declined to

change a correct finding of fact that is amply supported by

substantial competent evidence.

16 / Pointing out that the Agency's argument here rests on a

technicality is not to belittle the Agency's position —— rules are

rules, after all, and those who seek Medicaid money must follow

them, even the technical ones. On the other hand, when a

provider plainly has been attempting to follow the myriad

Medicaid rules and has been tripped up by an inadvertently

overlooked detail, and when the deficiency is clearly a harmless

error that caused no discernable prejudice to th e Medicaid

Program or the patient, requiring the provider to forfeit

payments for competently performed, medically necessary services

would serve no constructive purpose, would strike most fair -

minded people as unreasonable and perhaps arbitrary or

caprici ous —— and might result in the unintended consequence of

causing some providers to avoid caring for Medicaid patients.

COPIES FURNISHED:

Shawn Jordan, Esquire

13740 Northeast 11th Avenue

North Miami, Florida 33161

Patrick A. Scott, Esquire

The Scott Law Group, P.A.

Suite 707 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

L. William Porter, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Executive Center III

Tallahassee, Florida 32308 - 5403

Di ane Grubbs, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

William Roberts, Esquire, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort K nox Building Three, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3116

Tallahassee, Florida 32308

Patrick A. Scott, Esquire

The Scott Law Group, P. A.

Suite 707 Biscayne Building

19 West Flagler Street

Miami, Florida 33130

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended O rder. Any exceptions

to this R ec ommended O rder should be filed with the agency that

will issue the F inal O rder in this case.