03-001920MPI Lily-Scott Formato, D/B/A Tender Loving Childbirth vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, September 29, 2003.

Summary: Agency established Medicaid overpayment and Petitioner abandoned the challenge to the amount overpaid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILY - SCOTT FORMATO, )

d/b/a TENDER LOVING CHILDBIRTH, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1920MPI

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on August 8, 2003, in Tallahassee, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Debora E. Fridie, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive, Suite 343

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether the Petitioner owes the amount assessed in the

Respondent's Final Agency Audit Report for a Medicaid

overpayment of $6,487.20.

PRELIMINARY STATEMENT

This case began on April 21, 2000, when the Respondent,

Agency for Health Care Administration, Medicaid Program

Integrity Office (Respondent or Agency), completed a review of

the Petitioner's Medicaid claim for the period February 22,

1997 through February 22, 1999. For the two - year period of

the audit the Agency determined that the Petitioner, Lily -

Scott Formato, d/b/a Tender Loving Childbirth (Petitioner),

had been overpaid $15,039.05. The overpayment was based upon

a rejection of claims that were in whole or in part not

covered by Medicaid.

The Petitioner requ ested an administrative hearing to

contest the findings of the audit, and the case was forwarded

to the Division of Administrative Hearings and assigned DOAH

Case No. 01 - 4525MPI. Thereafter, the case was remanded to the

Agency after the parties represented the issues had been or

would be settled.

On May 7, 2003, the Agency filed a Motion to Reopen the

Proceeding as the parties had failed to amicably resolve the

case. On June 5, 2003, the case was reopened as DOAH Case No.

03 - 1920MPI. On July 7, 2003, the case was scheduled for

formal hearing. Both the order reopening the case and the

notice of hearing were furnished to Petitioner at the address

of record. Neither was returned to the Division of

Administrative Hearings as undelivered by the postal service.

It is presumed the Petitioner received the notice of hearing.

Prior to the hearing, the Agency filed a Motion for an

Order Deeming Request for Admissions Admitted. An order to

the Petitioner to show cause why the motion should not be

granted was r eturned by the postal service with the notice

"moved left no address" and "unable to forward." Similarly,

the Agency's effort to supply the Petitioner with its

prehearing exhibits was undeliverable to the Petitioner at the

address of record.

At the hearing, the Agency requested that the admissions

be deemed admitted as the Petitioner failed or refused to

timely respond to the discovery. Such motion was granted.

Additionally, it was determined that the Petitioner had moved

subsequent to notice of the h earing. The Petitioner failed to

appear for hearing and thereby waived a challenge of the

findings set forth by the audit.

Additionally, the Agency timely filed a Motion for Costs

to which the Petitioner has not responded. Having determined

the Agency should prevail in this cause, it is further

determined the Agency is entitled to recover costs of the

audit and administrative proceeding.

A transcript of the proceeding was filed with the

Division of Administrative Hearings on August 12, 2003.

Thereafter , the Agency timely filed a Proposed Recommended

Order that has been considered in the preparation of this

Recommended Order. The Petitioner did not file a post - hearing

proposed recommended order. All citations are to Florida

Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner was an authorized Medicaid provider during

the period of the audit.

2. Petitioner's Medicaid provider number was 376782500.

3. As a Medicaid provider, the Petitioner was obligated

to comply with the Medic aid Provider Agreement(s), statutes,

rules, and policy guidelines that the Agency uses to govern

Medicaid providers.

4. During the audit period of this case, the Petitioner

was required to maintain all "Medicaid - related records" to

support the Medicaid invoices and claims for which payment was

requested of the Agency.

5. In fact, by law the records are to be maintained for

a five - year period of time so that the Petitioner would be

able to "satisfy all necessary inquiries by the agency." See

Section 409.9 07(3)(c).

6. In this case the Agency computed the overpayment

based upon the records submitted by the Petitioner. The

Petitioner did not contest the randomness of the clusters

applied by the Agency in creating the overpayment amount.

7. The Petitioner billed for the payments in the

overpayment amount and received payment from the Agency.

8. The overpayment to Petitioner was originally

calculated to be $15,039.05. At hearing the Agency announced

the overpayment had been reduced to $6,487.20.

9. Base d upon the failure of the Petitioner to appear at

hearing and the return of the mail that had been provided to

the Petitioner's last known address, the Agency believes the

Petitioner is out of business and has relocated to an unknown

address.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. Section 120.57.

11. Based upon the admissions in this cause and the

failure of the Petitioner to appear at hearing, the A gency has

established the overpayment of the Medicaid claims as set

forth in the Final Agency Audit Report dated April 21, 2000.

12. Additionally, the Agency is entitled to recover a

reasonable amount to cover the costs of pursuing this matter,

including, expert witness fees, process server fees,

investigative fees and mailing costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

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

Administration enter a final order against the Petitioner for

a Medicaid overpayment in the amount of $6,487.20, together

with reasonable costs incurred in this cause.

DONE AND ENTERED this 29th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

J. D. Parrish

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 29th day of September, 2003.

COPIES FURNISHED :

R honda M. Medows, M.D., Secretary

Agency for Heath Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3116

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

Lily Scott Formato

Tender Loving Childbirth

10046 Daisy Avenue

Palm Beach Gardens, Florida 33410

Debora E. Fridie, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station No. 3

2727 Mahan Drive, Suite 343

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.