09-003547 Agency For Health Care Administration vs. Nationwide Healthcare Services, Inc. Status: Closed Recommended Order on Monday, July 11, 2011.

Summary: Petitioner established (1) a case of overpayment, and (2) overpayment computation is proper and accurate; and demonstrated a fine should be imposed. Recommend repayment of overpayment, plus a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 09 - 3547

)

NATIONWIDE HEALTHCARE SERVICES, )

INC. , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on July 23, 2010, by video teleconference with connecting sites

in Miami and Tallahassee, Florida, before Errol H. Powell, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Andrew T. Sheeran , Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Re spondent: Jona than Ewing , Esquire

Griffin & Serrano , P.A.

Blackstone Building, Sixth Floor

707 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue for determination i s whether Respondent was

overpaid by t he Medicaid program as set forth in Petitioner 's

Final Audit Report dated May 18, 2009, for the period July 1,

2004 , through June 30, 2006 .

PRELIMINARY STATEMENT

By Final Audit Report (F AR) dated May 18, 2009 , Nationwid e

Healthcare Services, Inc. (Nationwide) was notified by the

Agency for Health Care Administration ( AHCA ) that , after a

review of all documentat ion submitted regarding Medicaid claims

for the period July 1, 2004 , through June 30, 2006, a

determination had been made that Nationwide was overpaid by the

Medicaid prog ram in the amount of $326,866.72 and that a fine of

$2,500.00 had been applied, totaling an amount due of

$329,366.72 . The procedure and formula for the calculation of

the overpayment w ere i nclude d in the FA R. Nationwide disputed

the FA R and requested a hearing. On July 2, 2009 , this matter

was referred to the Division of Administrative Hearings.

The final hearing was originally scheduled for

September 28, 2009. Upon agreed motions for continuan ce ,

primarily on the ground that a review of additional medical

records from Nationwide was necessary and that authorization for

an amended final audit report was re quired to be obtained from

the f ederal Centers for Medicare and Medicaid Services, the

fina l hearing was rescheduled. Subsequently, an Agreed Motion

to Amend Final Audit Rep ort was filed and was granted.

On January 12, 2010, AHCA fil ed an Amended FAR, dated

January 7, 2010. By the Amended FAR, AHCA notified Nationwide

that after a review of ne w documentation submitted regarding

Medicaid claims for the period July 1, 2004 , through June 30,

2006, a revised determination had been made that Nationwide was

overpaid by the Medicaid program in the amount of $31,756.20 and

that a fine of $2,500.00 had been applied, totaling an amount

due of $34,265.20. The procedure and formula for the

calculation of the overpayment w ere included in the Amended FAR.

Nationwide disputed the Ame nded FAR and filed an amended

response to the Amended FAR . The final hearin g was rescheduled.

By agreement, continuances were granted and the hearing was

rescheduled.

At hearing, AHCA presented the testimony of two witness es

and entered 14 exhibit s (Petitioner's Exhibit s numbered 1

through 14) into evidence. Nationwide presente d the testim ony

of one witness and entered 17 exhibits ( Respondent's Exhibits A

through Q ) into evidence.

A t ranscript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing submissions was

set for more than ten days f ollowing the filing of the

transcript . The Transcript, consisting of two volumes, was

filed on September 16, 2010. The parties timely filed their

post - hearing submissions, which were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. AHCA audited certain of Nationwide 's Medicaid claims

pertaining to services rendered between July 1, 2004 , and

June 30, 2006, hereinafter the audit period.

2 . Nationwide was an authorized Medicaid provider of home

health services to Medicaid reci pients during the audit period .

3 . Durin g the audit period, Nationwide had been issued

Med icaid provider number 650065000 .

4 . No dispute exists that, dur ing the audit period,

Nationwide had a vali d Medicaid Provider Agreement with AHCA

(Agreement).

5 . N o dispute exists that, during the audit period,

Nationwide r eceived payment for services to Medicaid recipients,

including for the services that are being disputed in the

Amended FAR.

6. The Agreement provided , among other things, that the

submission of M edicaid claims by Nationwide for payment

constitute d a certification that the services were provided in

accordance with state a nd federal laws, as well as rules and

regulations applicable to the Medicaid program, including the

Medicaid provider handbooks i ssued by AHCA.

7. Pursuant to the federal Deficit Reduction Act of 2005,

the federal Centers for Medicare and Medicaid Services (CMS)

contracted with Catapult Consultants, LLC (Catapult) to conduct

several audits in Florida in cooperation with AHCA's Bur eau of

Medicaid Program Integrity (MPI). MPI's primary responsibility

is to audit healthcare providers who participate in the Florida

Medicaid Program and to ensure that Medicaid providers are only

reimbursed for services that are in accordance with Flori da

Medicaid handbooks and rules.

8. Catapult conducted the audit on Nationwide. MPI

oversaw and reviewed Catapult's audit of Nationwide.

9. Nationwide was noticed by CMS that Catapult would be

conducting an audit on N ationwide for the audit period .

10. MPI provided Catapult with a list of sample claims to

be audited. Catapult requested from Nationwide (a)

documentation and complete medical records for the recipients of

the service , and (b) dates of service in the sample claims.

11. Catapult reviewed t he documents and records received

from Nationwide to determine (a) what services were provided ,

and (b) whether the services were provided in compliance with

Medicaid policies and procedures.

12. Catapult prepared a draft audit report and provided it

to C MS. CMS reviewed the draft audit report and forwarded it to

MPI for review.

13. On July 7, 2008, CMS sent a Preliminary Audit Report

(PAR) to Nationwide. The PAR included seven findings and

identified an overpayment of $367,097.10 for claims that, in

wh ole or part, were not covered by Medicaid. Nationwide was

requested, among other things, to provide a response, including

additional documentation, i.e., documentation not previously

provided, that Nationwide wanted considered.

14. Nationwide responded a nd provided additional

documentation for Catapult to consider.

15. Catapult, in cooperation with MPI, reviewed the

additional documentation.

16. Catapult completed a final audit report and provided

it to CMS for review. CMS reviewed the final audit repo rt and

forwarded it to MPI.

17. On May 18, 2009, MPI issued the FAR. The FAR included

four findings: Finding No.1, Inadequate Inform ation in the

Treatment Plan; Finding No. 2, Services Billed Without a Valid

Plan of Care (POC); Finding No. 3, Too Many H ours Bille d by

Private Duty Nurse; and Finding No. 4, Maintaining Records. The

FAR identified and demanded repayment of an overpayment of

$326,866.72 and imposed a fine of $2,500.00, totaling a

repayment of $329,366.72.

18. Subsequently, Nationwide again submitted additional

documentation.

19. On January 7, 2010, MPI issued an Amended FAR wh ich

included three findings: Finding No. 1, Services Billed Without

a Valid POC; Finding No. 2, Too Many Hours Bille d by Private

Duty Nurse; and Finding No. 3, Maint aining Records. The Amended

FAR identified and demanded repayment of an overpayment of

$31,765.20 and imposed a fine of $2,500.00, totaling a repayment

of $34,265.20.

20. The Amended FAR and the work papers associated with

the audit, which were in the fo rm of a spreadsheet containing

contemporaneous notes of the auditor, were admitted into

evidence.

21 . Only cla ims included and considered in the FAR were

included and considered in the Amended FAR.

Finding No. 1, Services Billed Without a Valid POC

22 . T hree sub - findings were included in Finding No. 1,

Services Billed Without a Valid POC: Sub - Finding No. 1, POC Not

Signed by a Physician; Sub - Finding No. 2, Rubber Stamp U sed for

the P hysician 's Signature; and Sub - Finding No. 3, Billed for

Hours Outside th e POC A uthorization.

23 . Eighteen claims , considered overpayments by AHCA, were

associated with Finding No. 1.

24 . One of the 18 claims, claim 351, was associated with

Sub - Finding No. 1. The POC for claim 351 was signed by a nurse

practitioner, not a ph ysician, in violation of the Medicaid

handbook. Nationwide does not dispute that claim 351 is an

overpayment.

25 . Seven of the 18 claims were associated with Sub -

Finding No. 2: claims 6, 12, 46, 71, 120, 189, and 219.

Nationwide disputes that the clai ms were overpayments. All of

the seven claims were for the same rec ipient of the services

provided, T. S. T. S.'s attending physician, Carlos Diaz, M.D.,

approved the care for T. S. Dr. Diaz admitted that the

signatures on the POCs were rubber stamped ; and that the POCs

were rubber stamped either by him or the nurse practitioner, but

that he was not always present with the nurse practitioner when

she stamped the POCs. Also, Dr. Diaz did not initial the rubber

stamped signatures.

26 . Ten of the 18 claim s were associated with Sub - Finding

No. 3: claims 281, 298, 119, 72, 145, 167, 176, 274, 210, and

2 . Only claim 2 is disputed by Nationwide as an overpayment .

Regarding claim 2, Nationwide billed for services that were

rendered after the date that the re cipient of the services was

discharged by Nationwide. 1

Finding No. 2, Too Many Hours Billed by Private Duty Nurse

27 . The basis for Finding No. 2, Too Many Hours Billed by

Private Duty Nurse , is that more hours were billed than were

supported by the docu mentation.

28 . Fourteen claims were associated with Finding No. 2 :

claims 333, 381, 388, 669, 27, 47, 701, 52, 6, 18, 36, 44, 500,

and 82. Only claims 333 , 27, 47, 701, 6, 18, 36, and 44 are

disputed by Nat ionwide as overpayments .

29 . Regarding claim 3 33, Nationwide billed for seven hours

of service. The evidence demonstrate s 6.5 hours of service.

30 . As to claim 27, Nationwide billed for 12 hours of

service. The evidence demonstrates 11.5 hours of service.

31 . Regarding claim 47, Nationwide billed for 12 hours of

servi ce. The evidence demonstrates 11 hours of service.

32 . As to claim 701, Nationwide billed for 15 hours of

servi ce. The evidence demonstrates 14 hours of service.

33 . Regarding claim 6, Nationwide billed for 12 hours of

servi ce. Nu rsing notes indicate that the recipient of the

service received radiation therapy for two hours. The evidence

demonstrates 10 hours of service.

34 . As to claim 18, Nationwide billed for seven hours of

service. The eviden ce demonstrates 6.5 hours of serv ice.

35 . Regarding claim 36, Nationwide billed for seven hours

of service. The eviden ce demonstrates 6.5 hours of service.

36 . As to claim 44, Nationwide billed for seven hours of

service. The eviden ce demonstrates 6.5 hours of service.

3 7 . The privat e duty nurses were LPNs. Private duty

nurses are paid an hourly rate. No evidence was presented that

payment was authorized for a portion of an hour. For total

service hours that were one - half of an hour, AHCA rounded down

to the nearest hour. As a res ult, claims 333, 18, 36, and 44

were rounded to six hours of service; and claim 27 was rounded

to 11 hours of service. The evidence demonstrates that claims

333, 18, 36, and 44 were appropriately rounded to six hours of

service; and claim 27 was appropria tely rounded to 11 hours of

service.

Finding No. 3, Maintaining Records

3 8 . Three claims were associated with Finding No. 3:

claims 622, 30, and 507. Nationwide failed to maintain records

to support the services provided. Nationwide does not dispute

tha t the three claims were overpayments.

Accuracy of the Formula

39 . No dispute exists as to the accuracy of the formula

used to calculate the total overpayment.

CONCLUSIONS OF LAW

40 . The Division of Administrative Hearings has

jurisdiction over the subjec t matter of this proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2011).

4 1 . The parties agree that AHCA is responsible for

administering the Medicaid program in Florida.

4 2 . AHCA is required to "operate a program to oversee the

activities of Florida Medicaid recipients, and providers and

their representatives, to ensure that fraudulent and abusive

behavior and neglect of recipients occur to the minimum extent

possible, and to recover overpayments and impos e sanctions as

appropriate." § 409.913, Fla. Stat. (2004) , (2005), and (2006) . 2

4 3 . Section 409.913 provides in pertinent part:

(1) For the purposes of this section, the

term:

* * *

(e) "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.

* * *

(2) The agency shall conduct, or cause to

be conducted by contract or oth erwise,

reviews, investigations, analyses, audits,

or any combination thereof, to determine

possible fraud, abuse, overpayment, or

recipient neglect in the Medicaid program

and shall report the findings of any

overpayments i n audit reports as

appropriate. [ 3]

* * *

(7) When presenting a claim for payment

under the Medicaid program, a provider has

an affirmative duty to supervise the

provision 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:

(a) Have actually been furnished to the

recipient by the provider prior to

submitting the claim.

(b) Are Medicaid - cov ered goods or service s

that are medically necessary.

* * *

(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.

(f) Are documented b y records made at the

time the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendered. 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 th e recipient's

medical record.

The agency may deny payment or require

repayment for goods or services that are not

presented as required in this subsection.

* * *

(9) A Medicaid provider shall retain

medical, professional, financial, and

business records pertaining to services and

goods furnished to a Medicaid recipient and

billed to Medicaid for a period of 5 years

after the date of furnishing such services

or goods. The agency may investigate,

revi ew, or analyze such records, which must

be made available during normal business

hours. However, 24 - hour notice must be

provided if patient treatment would be

disrupted. The provider is responsible for

furnishing to the agency, and keeping the

agency inf ormed of the location of, the

provider's Medicaid - related records. The

authority of the agency to obtain Medicaid -

related records from a provider is neither

curtailed nor limited during a period of

litigation betwe en the agency and the

provider.

* * *

(11) The agency may deny payment or require

repayment 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 fur nished.

* * *

(15) The agency may seek any remedy

provided by law, including, but not limited

to, the remedies provided in subsections

. . . (16) . . . if:

* * *

(c) The provider has not furnished or has

failed to make available such Medica id -

related records as the agency has found

necessary to determine whether Medicaid

payments are or we re due and the amounts

thereof;

(d) The provider has failed to maintain

medical records made at the time of service,

or prior to service if prior authori zation

is required, demonstrating the necessity and

appropriateness of the goods or services

rendered;

(e) The provider is not in compliance with

provisions of Medicaid provider publications

that have been adopted by reference as rules

in the Florida Adm inistrative Code; with

provisions of state or federal laws, rules,

or regulations; with provisions of the

provider agreement between the agency and

the provider; or with certifications found

on claim forms or on transmittal forms for

electronically submitt ed claims that are

submitted by the provider or authorized

representative, as such provisions apply to

the Medicaid program;

* * *

(h) The provider or an authorized

representative of the provider, or a person

who ordered or prescribed the goods or

s ervices, has submitted or caused to be

submitted false or a pattern of erroneous

Medicaid claims;

* * *

(16) The agency shall impose any of the

following sanctions or disincentives on a

provider or a person for any of the acts

described in subsecti on (15):

* * *

(c) Imposition of a fine of up to $5,000

for each violation. . .

* * *

(20) In making a determination of

overpayment to a provider, the agency must

use accepted and valid auditing, accounting,

analytical, statistical, or peer - review

methods, or combinations thereof.

Appropriate statistical methods may include,

but are not limited to, sampling and

extension to the population, parametric and

nonparametric statistics, tests of

hypotheses, and other generally accepted

statistical methods. Appropriate analytical

methods may include, but are not limited to,

reviews to determine variances between the

quantities of products that a provider had

on hand and available to be purveyed to

Medicaid recipients during the review period

and the quantities of the same products paid

for by the Medicaid program for the same

period, taking into appropriate

consideration sales of the same products to

non - Medicaid customers during the same

period. In meeting its burden of proof in

any administrative or court proceeding, the

agency may introduce the results of such

statistical methods as evidence of

ov erpayment.

(21) When making a determination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider showin g t he calculation of

overpayments.

(22) The audit report, supported by agency

work papers, showing an overpayment to a

provider constitutes evidence of the

overpayment. . . .

44 . The burden of proof is on AHCA to establish a Medicaid

overpayment by a p reponderance of the evidence. Southpointe

Pharmacy v. Dep't of HRS , 596 So. 2d 106, 109 (Fla. 1st DCA

1992); S. Medical Services, Inc. v. A g. For Health Care Admin. ,

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

45 . H aving the ultimate burden of proof, AHCA mu st first

present a prima facie case of overpayment . In the instant case,

AHCA met its burden of presenting a prima facie case by the

admission into evidence of its audit report, supported by its

work papers, showing an overpayment to Nationwide. See Ag. for

Health Care Admin. v. Orietta Med. Equip. , Inc. , Case No. 05 -

0873MPI, 2006 Fla. Div. Adm. Hear. LEXIS 555 *11 (Fla. DOAH

December 1, 2006; Fla. AHCA December 22, 2006) ("It is concluded

that the Legislature has determined that the audit reports in

thes e matters may be considered evidence of the overpayment. As

such, the Agency met its prima facie burden to establish the

overpayment and the amount claimed to be due."); § 409.913(22),

Fla. Stat. Once AHCA presents its prima facie case, Nationwide,

the p rovider, is obligated to rebut, impeach, or otherwise

undermine AHCA's evidence. See Ag. for Health Care Admin. v.

Bagloo , Case No. 08 - 4921MPI, (Fla. DOAH September 10, 2009; Fla.

AHCA November 9, 2010).

46 . The Florida Medicaid Home Health Services Cove rage and

Limitations Handbook , effective October 2003, (Handbook) was

incorporated by reference into Florida Administrative Code Rule

59G - 4.130(2).

Finding No. 1, Services Billed Without a Valid POC

47 . At issue is Sub - Finding No. 2, Rubber Stamp Used for

the Physician's Signature , regarding claims 6, 12, 46, 71 , 120,

189, and 219.

48 . The Handbook requires the attending physician to

approve the POC and the approval to be evidenced by the

attending physician's "original signature." Handbook, P age 2 - 6.

" A rubber stamp or initialed signature is not acceptable." Id.

49 . Nationwide argues that the Handbook conflicts with

Florida Administrative Code Rule 59A - 8.022, which permits a

physician's rubber stamp signature .

50 . AHCA argues that no conflict exists in that the said

Rule permitting a physician's rubber stamp signature was not in

effect at the time that the services w ere provided to the

recipient.

51 . Florida Administrative Code Rule 59A - 8.022 provides in

pertinent part:

(6) The following applies to s ignatures in

the clinical record:

(a) Facsimile Signatures. The plan of care

or written order may be transmitted by

facsimile machine. The home health agency

is not required to have the original

signature on file. However, the home health

agency is re sponsible for obtaining original

signatures if an issue surfaces that would

require certification of an original

signature.

(b) Alternative Signatures.

1. Home health agencies that maintain

patient records by computer rather than hard

copy may use ele ctronic signatures.

However, all such entries must be

appropriately authenticated and dated.

Authentication must include signatures,

written initials, or computer secure entry

by a unique identifier of a primary author

who has reviewed and approved the e ntry.

The home health agency must have safeguards

to prevent unauthorized access to the

records and a process for reconstruction of

the records in the event of a system

breakdown.

2. Home health agencies may accept a

physicianÓs rubber stamp signature. The

individual whose signature the stamp

represents must place in the administrative

offices of the home health agency a signed

statement attesting that he/she is the only

one who has the stamp and uses it.

52 . Florida Administrative Code Rule 59A - 8.022 became

effective on August 15, 2006. The audit period does not extend

beyond June 30 , 2006. Therefore, the said r ule was not in

effect at the time the services were provided to the recipient.

T he undersigned is persuaded by AHCA's argument. Consequent ly ,

a physician's rubber stamp signature was not permitted at the

time that the services were provided.

53 . The evidence demonstrates that, for claims 6, 12, 46,

71, 120, 189, and 219, the POCs failed to contain the

physician's original signature . Hence, the evidence

demonstrates overpayments for claims 6, 12, 46, 71, 120 , 189,

and 219 .

54 . Additionally, at issue is Sub - Finding No. 3, Billed

for Hours Outside the POC Authorization , regarding claim 2.

55 . The Handbook requires services to be consistent w ith

the individualized, written physician - approved POC. As a

result, the hours billed for one day on a claim should reflect

the hours authorized by the POC. Handbook, Page 2 - 2.

56 . Further, the Handbook provides that, when services

begin one day and end the next day, billing should reflect the

total number of care hours provided on each day. Handbook, Page

2 - 18. As a result, the claim should reflect the total hours of

service provided on one day and the total hours of service

provided on the next day.

57 . Regarding claim 2, the evidence demonstrates that the

recipient of the services provided was discharged, but that

Nationwide billed for services provided beyond the discharge

date. Hence, the evidence demonstrates an overpayment for claim

2.

Finding No. 2, Too Many Hours Billed by Private Duty Nurse

58 . At issue is that more hours were billed by Nationwide

than were supported by the documentation regarding claims 333,

27, 47, 701, 6, 18, 36, and 44.

59 . A home health agency is required to maintain r eports

and medical records that accurately document the services

provided to a recipient. See § 409.913(7)(f) and (9), Fla.

Stat.; Handbook, Page 2 - 22. Further, the services provided are

required to be documented by records made at the time the

services were provided. See § 409.913(7)(f). The Handbook

requires certain documentation in the recipient's current

medical record, including nursing notes, progress notes, and

dates and signatures of practitioners who render care (rubber

stamp or initialed rubbe r stamp signatures are not accepted).

Handbook, Page 2 - 22.

60 . Private duty nurses are permitted to round up to the

next hour when any portion of the hour exceeds 30 minutes.

Handbook, Appendix, Page D - 2.

61 . Medicaid does not pay for private duty nu rsing

services provided in a hospital, a physician's office, or a

clinic. Handbook, Page 2 - 17.

62 . The evidence demonstrates overpayments for claims 333,

27, 47, 701, 6, 18, 36, and 44.

63. Consequently, AHCA established a case of overpayment

and that t he overpayment computation is proper and accurate.

64. Hence, AHCA demonstrated that Nationwide received

Medicaid overpayments in the amount of $31 ,765.20 for the audit

period .

65 . As to sanctions, AHCA suggests that Florida

Administrative Code Rule 59G - 9.070(7)(c) and (e) is applicable.

Florida Administrative Code Rule 59G - 9.070 , effective April 26,

2006, provides in pertinent part:

(7) SANCTIONS: Except when the Secretary

of the Agency determines not to impose a

sanction, pursuant to Section

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

imposed for the following:

* * *

(c) Failure to make available or furnish

all Medicaid - related records, to be used by

the Agency in determining whether Medicaid

payments are or were due, and what the

appropriate corr esponding Medicaid payment

amount should be within the timeframe

requested by the Agency or other mutually

agreed upon timeframe. [Section

409.913(15)(c), F.S.];

* * *

(e) Failure to comply with the provisions

of the Medicaid provider publications t hat

have been adopted by reference as rules,

Medicaid laws, the requirements and

provisions in the providerÓs Medicaid

provider agreement, or the certification

found on claim forms or transmittal forms

for electronically submitted claims by the

provider or authorized representative.

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

66 . Regarding the Medicaid - related records, Nationwide did

not fail to make available or furnish , upon the request of AHCA,

the Medicaid - related records to support the services r endered ,

but failed to maintain the Medicaid - related records to support

the services rendered. The evidence does not demonstrate that

Nationwide committed a violation of Florida Administrative Code

Rule 59G - 9.070(7)(c) and, therefore, the said r ule is not

applicab le .

67 . However, the evidence demonstrates that Nationwide

committed a violation of Florida Administrative Code Rule 59G -

9.070(7)(e).

68 . The corresponding penalty guideline provide s that , for

a first offense, the penalty is a $500.00 fine per provision,

not to exceed $1,500.00 per agency action. Fla. Admin. Code R.

59G - 9.070( 10)(i).

69 . AHCA suggests a $2,500.00 fine. No evidence was

presented to demonstrate that Nationwide has committed any other

offense, and, therefore, the fine should not exceed $ 1,500.00.

The suggested fine exceeds the maximum allowable fine and is,

therefore, not appropriate. See Fla. Admin. Code R. 59G -

9.070(10)(i).

70 . A fine of $1,500.00 is appropriate and should be

imposed.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order finding that Nationwide Healthcare Services,

Inc., received overpayments from the Medicaid program in the

amount of $31,765.20 for the audit period July 1, 2004, through

June 30, 2006 ; imposing a fine of $1,500.00; and requiring

Nationwide Healthcare Servic es, Inc., to repay the overpayment

of $31,765.20, plus a fine of $1,500.00, totaling $33,265.20 .

DONE AND ENTERED this 11th day of July, 2 011, in

Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of July, 2011.

ENDNOTES

1/ Nationwide submits as a proposed finding of fact that the POC

of the recipient of the services reflects th at Nationwide was

approved to provide further care for the recipient beyond the

date of the discha rge and, therefore, should not be an

overpayment . Nationwide's argument is not persuasive.

2/ Unless otherwise provided, all citations to Florida Statutes

are 2004 , 2005, and 2006 . The parties agree that applicable

Florida Statutes are 2004 , 2005, and 2006 .

3/ Versions 2005 and 2006, contained the following additional

wording: "At least 5 percent of all audits shall be conducted on

a random basis."

COP IES FURNISHED:

Richard J. Shoop, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahasse e, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5403

Andrew T. Sheeran, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

Jonathan Ewing, Esquire

Griffin & Serrano, P.A.

Blackstone Building, Sixth Floor

707 Southeast 3rd Avenue

Fort Lauderdale, Florida 33316

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.