02-002690MPI Hardy L. Paschal vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Tuesday, February 4, 2020.

Summary: Provider was overpaid by Medicaid program because billings did not meet Medicaid billing criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARDY L. PASCHAL, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2690MPI

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Purs uant to notice, a final hearing was conducted on

April 25, 2003, by video teleconference between Miami and

Tallahassee, Florida, before Administrative Law Judge Claude B.

Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petition er: Neil Flaxman, Esquire

Neil Flaxman, P.A.

550 Biltmore Way, Suite 780

Coral Gables, Florida 33134

For Respondent: Jeffries H. Duvall, Esquire

Agency for Hea lth Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Petitioner, a home and community support services

coordinator, was overpaid by the Medicaid program as alleged in

the Final Agency Audit Report (FAAR) dated March 25, 2002.

PRELIMINARY STATEMENT

Respondent's FAAR alleged that Petitioner was overpaid the

sum of $45,574.92, for services rendered during th e audit period

beginning January 1, 2000, and ending January 31, 2001.

Petitioner requested a formal administrative hearing to

challenge the alleged overpayment, the matter was referred to

the Division of Administrative Hearings, and this proceeding

follo wed. After Petitioner submitted additional information and

documentation, Respondent reduced the alleged overpayment to

$39,797.35, which is the amount at issue in this proceeding.

To facilitate the presentation of evidence at the final

hearing, Respond ent presented its case before Petitioner

presented his. Respondent presented the testimony of Marcie

Brittain (a Medicaid Waiver Coordinator for the Florida

Department of Children and Family Services) and Effie Stephan

(an analyst who audits Medicaid prov iders on behalf of

Respondent). Respondent presented three exhibits, each of which

was admitted into evidence. Respondent's first two exhibits

were lengthy composite exhibits. Petitioner testified on his

own behalf, and presented one exhibit, which was admitted into

evidence.

A Transcript of the proceedings was filed on July 10, 2003.

Each party filed a Proposed Recommended Order, which has been

considered by the undersigned in the preparation of this

Recommended Order. All citations are to Florida St atutes (2000)

unless otherwise noted.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida

responsible for oversight of the integrity of the Medicaid

program in Florida.

2. At all times pertinent to this proceeding, Petitioner

was a ho me and community services coordinator who provided

services to Medicaid recipients in Florida pursuant to

certification from Respondent. Petitioner billed the Medicaid

program on a monthly basis and received payments from the

Medicaid program based on tho se billings.

3. As a community services coordinator, Petitioner served

developmentally disabled clients who resided in the community,

as opposed to residing in an institution. Petitioner

coordinated the receipt of the services his clients received,

inc luding services from Developmental Services, which is a

division of the Department of Children and Family Services.

4. As a support coordination provider, Petitioner is

required to determine the needs of each client, prepare a

support coordination plan f or that client, and, after the

support coordination plan is approved by Respondent, coordinate

the provision of the services required by the plan. Petitioner

is required to document the services he provides for each

client.

5. Respondent routinely audi ts the records of Medicaid

providers to ensure compliance with Medicaid requirements. The

audit at issue in this proceeding covered the period January 1,

2000, to January 31, 2001.

6. The unnumbered opening sentence of Section 409.913

provides as follo ws:

The agency shall operate a program to

oversee the activities of Florida Medicaid

. . . providers and their representatives,

. . . to recover overpayments and impose

sanctions as appropriate.

7. During the audit period, Petitioner was subject to a ll

duly enacted statutes, laws, rules, and policy guidelines that

generally govern Medicaid providers. During the audit period,

the applicable statutes, laws, rules, and policy guidelines in

effect required Petitioner at Respondent's request to provide

Re spondent all Medicaid - related records and other information

that supported all the Medicaid - related invoices or claims that

Petitioner made during the audit period.

8. Section 409.913(7) provides, in pertinent part, as

follows:

(7) When presenting a c laim for payment

under the Medicaid program, a provider has

an affirmative duty . . . to supervise and

be responsible for preparation and

submission of the claim, and to present a

claim that is true and accurate and that is

for goods and services that:

* * *

(e) Are provided in accord with

applicable provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accordance with federal, state, and local

law.

9. Section 409.913(1)(d) defines the term "overpayment" as

follows:

(d) "Overpayment" includes any amount

that is not authorized to be paid by the

Medicaid program whether paid as a result of

inaccurate or improper cost reporting,

improper claiming, unacceptable practices,

fraud, abuse, or mistake.

10. Following the audit, Respondent sent Petitioner the

FAAR dated March 25, 2002, which asserted that Petitioner had

received an overpayment in the amount of $45,574.92 and demanded

repayment of the overpayment. Respondent stated the following

basis for concluding that the claim s were overpayments:

You billed and were paid for Support

Coordination Services when the documentation

was not found to substantiate the services

billed.

11. The audit letter provided, in part, as follows:

In determining payment pursuant to

Medicaid policy, the Medicaid program

utilizes procedure codes, descriptions,

policies, limitations and exclusions found

in the Medicaid provider handbooks and (sic)

Section 409.913, Florida Statutes (F.S.) and

Florida Administrative Code 59G - 8.200

(F.A.C.). In ap plying for Medicaid

reimbursement, providers are required to

follow the guidelines set forth in the

applicable rules. . . . Medicaid cannot pay

for services that do not meet these

guidelines.

12. Following his receipt of the audit letter, Petitioner

pr ovided Respondent with additional documentation. As a result

of that information, Respondent reduced the amount of the

claimed overpayment to the sum of $39,797.35.

13. Petitioner was required to follow the billing and

documentation requirements set fo rth in the Support Coordinator

Guidebook (the Guidebook). The Guidebook was made available to

Petitioner upon his enrollment as a home and community services

support coordinator. Petitioner knew or should have known the

billing and documentation requirem ents set forth in the

Guidebook, and he knew or should have known that he was required

to follow those requirements to be entitled to compensation from

the Medicaid program.

14. The Guidebook 1 provided, in part, as follows:

Payment to support coordinat ion providers

is made when all necessary support

coordination activities have been provided

to assist an individual in achieving or

making progress toward achieving the

outcomes identified on the support plan and

when all documentation for these supports

a nd services have been completed.

1. Prior to requesting a monthly

reimbursement for support coordinator

services, the following must be met:

The individual's current support plan and

district - approved cost plan are filed in the

individual's central re cord. . . .

At least one face - to - face contact with the

person for the month being billed has

occurred. . . .

At least once every three months, the

monthly face - to - face contact occurs in the

individual's or family's place of

residence.. . .

The suppo rt coordinator conducts at least

one other activity during the month being

billed. These contacts: (1) directly relate

to implementing the outcomes identified on

the individual's support plan, (2) directly

relate to facilitating the development of

natural and community supports, or (3)

directly relate to facilitating the

effective provision of supports and services

needed by the individual. These contacts

and activities may be either with the

individual or other persons such as family

members, service ven dors, [or] community

members. They may also be conducted face -

to - face or by phone.

Administrative activities such as typing,

filing, mailing, billing, letter writing, or

leaving messages shall not qualify as

contacts or activities meeting the minimum

billing criteria for a given month.

Additionally, scheduling time to develop the

support plan, setting up face - to - face

contact, setting up meetings with other

persons, and meeting with one's supervisor

or co - workers do not qualify as meeting the

minimum billing criteria. At least one of

the contacts or activities shall be

conducted on a different day within the

month from the face - to - face contact with the

individual.

15. There was a dispute between the parties as to whether

Petitioner satisfied the b illing criteria that the support

coordinator have at least one face - to face meeting the each

client each month and, in addition, that the support coordinator

perform at least one non - administrative activity on behalf of

the client during the month. The gr eater weight of the credible

evidence established that Petitioner did not meet the billing

criteria for the claims at issue. While it is clear that

Petitioner performed valuable services to his clients, he did

not meet the clear billing criteria set forth in the Guidebook.

Specifically, Petitioner did not have both a face - to - face

meeting with the client and perform a non - administrative

activity on behalf of the client during the month for any of the

monthly billings at issue. Respondent correctly determi ned that

Petitioner had received an overpayment within the meaning of

Section 409.913(1)(d), and it correctly determined the amount of

the overpayment to be $39,797.35.

16. The Medicaid program does not provide for partial

payments to a provider based on the work the provider actually

performed if the provider's billings do not meet the billing

criteria set forth in the applicable Guidebook. The Medicaid

program provides for no payment to a provider if the provider's

billings do not meet the billing crite ria set forth in the

applicable Guidebook.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2002).

18. The Medic aid billing requirements for providers such

as Petitioner are clearly set out in the Guidebook . Petitioner

submitted billings to the Medicaid Program that do not meet the

billing criteria. Consequently, the payments made by the

Medicaid Program to Petiti oner based on his billings constitute

overpayments.

19. Unless created by constitution, an administrative

agency has only such powers as the legislature chooses to confer

upon it by statute. It has no inherent powers to apply the type

remedy Petitioner seeks in this proceeding. In the absence of

an authorizing statute or an order from a court of competent

jurisdiction, Respondent cannot pay claims that do not meet the

billing criteria set forth in the Guidebook. See S. T. v.

School Board of Seminole C ounty , 783 So. 2d 1231 (Fla. 5th DCA

2001); and Mathis v. Fla. Dept. of Corr. , 726 So. 2d 389 (Fla.

1st DCA 1999).

20. Petitioner's contention that Respondent should have

notified him sooner that his billings were insufficient is

rejected as being witho ut merit. It was Petitioner's

responsibility to ensure that his claims met the billing

criteria set forth in the Guidebook. That responsibility never

shifted to Respondent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that Respondent enter a final order

finding that Petitioner received an overpayment from the

Medicaid program in the amount of $39,797.35 and requiring that

Petitioner repay that overpayment.

DONE AND ENTERED this 8th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of September, 2003.

ENDNOTE

1 / This text is found in Respondent's Exhibit 1, Tab 9, at

pages 31 - 34.

COPIES FURNISHED :

Jeffries H. Duvall, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

Neil Flaxman, Esquire

Neil Flaxman, P.A.

550 Biltmore Way, Suite 780

Coral Gables, Florida 3 3134

Hardy L. Paschal

1486 Northwest 53rd Street

Miami, Florida 33142

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Healt h Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

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.