10-000262MPI Agency For Health Care Administration vs. Maria D. Gonzalez Status: Closed Recommended Order on Tuesday, November 23, 2010.

Summary: Petitioner established by a preponderance of the evidence most, but not all, of the Medicaid overpayments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 0262 MPI

)

MARIA D. GONZALEZ , )

)

Respondent. )

)

RECOMMENDED OR DER

This case came before Administrative Law Judge Edward T.

Bauer for final hea ring by video teleconference on July 28 and

29 , 2010, and August 5, 2010 , at sites in Tallahassee and Miami ,

Florida.

APPEARANCES

For Petitioner: L. William Porter , II, Esquire

Agency for Health Care Administration

Fort Knox Executive Center III

2727 Mahan Drive , Mail Station 3

Tallahassee, Florida 32308

For Respondent: Joseph W. Gibson, Esquire

19 West Flagler Street, Suite 620

Miami , Florida 33130

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent was

overpaid $312,773.67 for claims which, according to Petitioner,

did not comply with Medicaid requirements.

PRELIMINARY STATEMENT

Petitioner Agency for H ealth Care Administration

( hereinafter "AHCA") is the agency responsible for administering

the Florida Medicaid Program. Respondent Maria D. Gonzalez is a

Home and Community - Based (HCB) Medicaid Waiver Services Provider

who has furnished goods or services to Medicaid beneficiaries.

On October 7, 2005, after detecting possible irregularities

in Respondent's billing patterns, AHCA notified Respondent that

it was initiating an audit of her billings. To that end, AHCA

requested that Respondent produce reco rds relating to a sampling

of the services she provi ded to 34 Medicaid recipients during

the period of January 1, 2003, through December 31, 2004.

On October 21, 2005, Respondent provided records in response to

the request, which AHCA found to be insuffici ent to document

some of the claims. Consequent ly, on May 24, 2007, AHCA issued

a Preliminary Agency Audit Report, wherein it alleged that

Respondent had been overpaid $5,309,263.56 for Medicaid services

during the audit period. In response to the prelimi nary audit,

Respondent provided additional documentation to Petitioner on

June 10, 2007. After reviewing the supplemental records, AHCA

issued a Final Agency Audit Report on Jun e 28, 2007, which

alleged that Respondent had been overpaid $1,647,960.81 for

Medicaid services.

Through counsel, Respondent requested a hearing to dispute

the overpayment assessment. The matter was referred to the

Division of Administrative Hearings ("DOAH"), on July 25, 2007,

and was assigned DOAH Case No. 07 - 3456MPI. At the parties'

request, the matter was placed in abeyance while they attempted

to reach a settlement. On October 12, 2009, the parties filed a

Joint Status Report indicating that settlement negotiations

remained ongoing. Administrative Law Judge John G. Va n

Laningham entered an Order Closing File on November 6, 2009,

which authorized the parties to reopen the case should a

settlement not be finalized. On January 15, 2010, AHCA filed a

Motion to Re - open, which was granted on January 19, 2010. The

Order Gra nting Request to Reopen Case reopened the instant

matter as DOAH Case No. 10 - 262MPI.

A final hearing was subsequently held on July 28 and 29,

2010, and August 5, 2010. At the o utset of the hearing, AHCA

announced that the alleged overpayment had bee n reduced to

$312,773.67. The parties also noted that Respondent did not

dispute the statistical methodology utilized by AHCA in

calculating the overpayment. AHCA called three witne sses :

Ms. Robi Olmstead, who serves as the administrator of the wavier

unit within AHCA's Burea u of Medicaid Program Integrity,

Ms. Effie Green, and Ms. Robin Satchell . AHCA also introduced

ten exhibits, identified as Petitioner's E xhibits A, B, C, D, E,

F, G, H, I, and J . The parties also introduc ed eight joint

exhib its, identified as Joint Exhibits A , B, C, D, E, F, G, and

H . Respond ent testified on her own be half, but presented no

other witnesses or exhibits.

Prior to the submission of testimony, the undersigned took

official recognition of the Florida Medicai d Provider

Reimbursement Handbook, November 1996 1 ; the Florida Medicaid

Provider General Handbook 2 ; and, the Florida Medicaid

Developmental Services Waiver Services Coverage and Limitations

Handbook, July 2002. 3

At the concl usion of the hearing, AHCA req uested 30 days to

submit a proposed recommended order following the filing of the

hearing transcript. As Respondent did not object, the

undersigned granted AHCA's request.

The final hearing transcript was filed on September 2,

2010. On September 27, 20 10, Respondent filed a motion for

extension of time to submit a proposed recommended order. The

undersigned granted the motion by written order, which directed

the parties to file proposed recommended orders by November 1,

2010. E ach party subsequent ly f iled Proposed Recommended

Order s , which were considered in the preparation of this

Recommended Order.

Unless otherwise indicated, all statutory references are to

the codification in effect at the time of the alleged

overpayment.

FINDINGS OF FACT

The Parti es

1. Petitioner Agency for Health Care Admini stration

("AHCA" ) is the state agency responsible for administering the

Florida Medicaid Program ("Medicaid").

2. At all relevant times, Respondent has been a Home and

Community Based (HCB) Medicaid provider that is authorized to

receive reimbursement for covered services re ndered to Medicaid

recipients .

Developmental Disability Home and Community Based Services

Waiver Program

3. The alleged overpayment in this case relates to

services Responden t provided through the Medicaid Developmental

Disability Home and Community Based Waiver Program ("the

Program"). As explained during Ms. Olmstead's final hearing

testimony, the Program was established to help developmentally -

disabled individuals remain i n their homes or home - like setting s

within the community, as opposed to institutions such as nursing

homes or intermediate care facilities.

4. Medicaid recipients that desire to receive services

through the Program undergo an initial evaluation performed by a

waiver support coordinator. The support coordinator is a

Medicaid provider that is selected by the Medicaid recipient or

his or her guardian.

5. To determine the services needed by the recipient to

remain in the home, the support coordinator ass esses the

recipient by conducting an in - home visit. Upon completion of

this initial assessment, the support coordinator formulates a

"support plan," a document which describes the recipient's

personality, likes, dislikes, strengths, and weaknesses, as wel l

as the recipient's existing support system, such as family,

friends, and neighbors. In addition, the support plan details

the services the recipient needs to stay in the home and

identifies who will provide the services. The expected costs of

the propo sed services are described on a form titled "cost

plan ," which, combined with the support plan, comprise the plan

of care for the recipient.

6. The support coordinator is required to submit the plan

of care, as detailed in the support plan and cost plan , to the

Department of Children and Families ("DCF"). If the plan of

care is approved, DCF staff will create a "service authorization

form." This form, which the support coordinator forwards to the

service provider, describes the services to be rendered, as well

as the duration and frequency of each service. Without the

service authorization form, a provider cannot be assured payment

from Medicaid.

7. At least one time per year, the support coordinator

must assess the recipient's needs, complete upda ted support and

cost plans, and submit the updated plans for approval. If the

updated plan of care is approved, DCF will draft a new service

authorization form, which is forwarded to the provider by the

support coordinator, along with copy of pertinent su pport plan

information. Should the recipient's services or support require

modification, the support coordinator is required to update the

cost report and submit it for approval.

8. Communication between the support coordinator and

providers such a s Respondent is encouraged, as the support

coordinator reviews with the provider the goals to be achieved

for the recipient. A service provider is expected to assist in

establishing support plan outcomes for a recipient's goals and

participate in the pers onal outcome process. Moreover, a

s ervice provider expressly consents to such communication by

virtue of the provider's contract with Medicaid, which includes

an agreement to participate in discussions with the support

coordinator on matters such as a rec ipient's progress, the

extent to which a recipient's needs are being met, and

modifications to the recipient's support plan.

The Preliminary Audit and Final Audit

9. Exercising its statutory authority to oversee the

integrity of Medicaid, Petitio ner conducted a review or audit of

Respondent's records to verify that claims paid by Medicaid

during the period from January 1, 2003, through December 31,

2004 (the "audit period"), were billed and paid in accordance

with Medicaid statutes, rules, and pol icies.

10. As the average number of claims per recipient during

the audit period was substantial, Petitioner utilized "two stage

cluster sampling." This first stage involved a random selection

of 34 receipts for whom Respondent submitted claims duri ng the

audit period. Next, from those 34 recipients, a total of 255

claims was randomly selected.

11. On October 7, 2005, AHCA requested that Respondent

provide "the documentation for services paid by the Florida

Medicaid Program" in connection with the 255 claims that

comprised the random sample. On or about October 21, 2005,

Respondent submitted 37 packages of documents in response to

Petitioner's request. Respondent also executed an affidavit

which alleged that the documents were true and correct copies,

and that the records were made at or near the time that the

services were rendered.

12. The documents submitted by Respondent were initially

examined by Ms. Effie Green, a program analyst employed by

Petitioner. Ms. Green immediately noticed that the records from

at least some of the packages were covered in dust with a

crystal - like appearance. Law enforcement office rs called to the

scene ultimately determined that the substance was harmless.

There is no evidence that any of the records were tampered with

or removed from Petitioner's offices during the investigation.

On the contrary, the evidence demonstrates that the documents

remained in Ms. Green's office until the dust was analyzed.

13. Following the events described above, the audit of

Respondent's records was delayed for approximately one year

while an appeal, which involved a different Medicaid provider,

was completed. The appeal, which was resolved in AHCA's favor,

concerned the validity of the statistical formula utilized in

cal culating probable Medicaid overpayments. 4

14. The responsibility of reviewing the documents provided

by Respondent was later transferred to Ms. Robin Satchell, an

investigator employed by Petitioner in the Bureau of Program

Integrity. Prior to her emp loyment with AHCA, Ms. Satch ell

worked for eight years as an HCB Medicaid provider.

15. Ms. Satchell fully reviewed the records previously

submitted on October 20, 2005, and also examined additional

records subsequently provided by Respondent to verify that the

claims paid during the audit period were billed and paid in

accordance with Medicaid statutes, rules, and policies.

16. Rules applicable to the claims reviewed in this case

are enumerated in the Florida Medicaid Developmental Services

Waiver S ervices Coverage and Limitations Handbook, and include:

Only those services that have been identified in a

recipient's plan of care and which have been approved and

authorized prior to delivery are covered. Providers are

limited to the amount, duration, and scope of the services

described on the recipient's support plan and current

approved cost plan.

Only those services that are medically necessary are

covered. Services furnished through the developmental

disability waiver program are deemed to be medic ally

necessary only if certain elements are present, including

but not limited to the following: the service is not in

excess of the recipient's needs; and, the service is

furnished in a manner not primarily intended for the

convenience of the recipient, t he recipient's caregiver, or

the provider.

In order to receive payment for services, the provider must

document the service appropriately. Documentation is a

written record that supports the fact that a service has

been rendered. Depending upon the parti cular service

provided (e.g., Personal Care Assistance, Homemaker

Services, Chore Services), the documentation requirements

may vary and are detailed in the Florida Medicaid

Developmental Services Waiver Services Coverage and

Limitations Handbook.

17 . On May 24, 2007, AHCA issued a Final Agency Audit

Report, which alleged that Respondent was overpaid $1,647,960.81

during the audit period for services that were not covered by

Medicaid.

18. Following the issuance of the Final Agency Audit

Report, and as announced at the outset of the final hearing in

his matter, Petitioner now alleges that Respondent was overpaid

$312,773.26.

19. The manner in which AHCA reached the alleged

overpayment of $312,773.67 is as follows: of the 255 claims

examined by M s. Satchell, 197 were allowed. 5 Ms. Satchell made

downward adjustments to 52 claims, and 6 were denied outright.

Based upon the adjustments and denials, Ms. Satchell concluded

that Respondent had received $1,287.26 in reimbursement of

claims in the sample for services not covered by Medicaid,

either in whole or in part. Having discovered this "empirical

overpayment" of $1,287.26, AHCA employed a statistical formula

to ascertain the "probable total overpayment" that Respondent

received from Medicaid in con nection with the total number of

claims made during the Audit Period. 6 As noted above, Petitioner

contends that the "probable total overpayment" is $312,773.67.

20. In her Proposed Recommended Order, Respondent asserts

that with respect to the entire sample of claims, only one

instance of incorrect billing occurred. In particular,

Respondent concedes that that services provided to Recipient

number 24 on September 2, 2003, were inadvertently overbilled in

the amount of $0.96. Respondent disputes the r emaining 51

downward adjustments and six outright denials, which are

discussed separately below by recipient. 7

Recipient No. 1

21. The support plan for this recipient authorized

Personal Care A ssistance, which is described in the Florida

Medicaid Devel opmental Services Waiver Services Coverage and

Limitations Handbook as follows:

[A] service that assists a beneficiary with

eating and meal preparation, bathing,

dressing, personal hygiene, and activities

of daily living. The service also includes

activit ies such as assistance with meal

preparation, bed marking and vacuuming when

these activities are essential to the health

and welfare of the beneficiary and when no

one else is available to perform them . . .

. Personal Care Assistance is limited to the

am ount, duration and scope of the services

described in the beneficiaries [sic] support

plan and current approved cost plan. [ 8 ]

(Emphasis added).

22. The support plan indicates that this recipient lived

with his mother and three siblings, all but one of whom were

capable of completing homemaker tasks.

23. AHCA alleges that of the five claims examined during

the audit, one is problematic.

24. In particular, AHCA contends that six of the

activities performed on November 12, 2004, constituted

u na uthorized homemaker tasks , and therefore overbilling occurred

in the amount of $12.90. According to AHCA, the unauthorized

activities included organizing clothes, cleaning the kitchen,

washing dishes, cleaning tables, cleaning the living room, and

washing laundry.

25. The undersigned finds that four of the six activities

were unauthorized homemaker tasks: organizing clothes, cleaning

the living room, washing laundry, and cleaning tables.

26. The undersigned cannot agree, however, that Respondent

in appropriately billed for washing dishes and cleaning the

kitchen. Notably, and as demonstrated by the service log, meal

preparation was one of the services provided to the recipient on

November 12, 2004. There is no allegation that meal preparation

was u nauthorized, and the various exhibits submitted by AHCA

plainly reveal that the service was appropriate (i.e., meal

preparation was not included in AHCA's list of unauthorized

activities for that date). In the undersigned's judgment, if a

service provider is authorized to cook a meal for a beneficiary,

it necessarily follows that the provider be permitted, and

indeed expected, to wash the dishes and clean the kitchen.

27. The undersigned's conclusion that Respondent

appropriately billed for cleaning th e kitchen and washing dishes

is supported by the notes made by Ms. Satchell in one of AHCA's

exhibits. In particular, page 3 of Petitioner's Exhibit H

indicates that with respect to the October 17, 2004, servi ces

provided to Recipient No. 6 (who likewise received Personal C are

A ssistance), one unit of service was deducted for cleaning the

kitchen because there was "no meal prep that day." The obvious

implication of this notation is that cleaning the kitchen would

not have been considered improper if a me al had been prepared.

28. As Respondent was authorized to prepare a meal for the

recipient on November 12, 2004, Respondent properly billed for

the services of washing the dishes and cleaning the kitchen.

Accordingly, the $12.90 alleged overpayment s hould be adjusted ,

as only four unauthorized activities (organizing clothes,

cleaning the living room, washing laundry, and cleaning tables)

were billed.

Recipient No. 3

29. The service authorization for Recipient No. 3 provided

for four hours of Hom emaker S ervices per week. The service

authorizat ion further indicated that the Homemaker S ervices were

intended to achieve the support plan goal of providing "the

beneficiary with [a] clean environment. General household

activities, such meal [sic] prepa ration, vacuuming, and routine

cleaning." It appears from the support plan that the Homemaker

S ervices were authorized due to the poor health of the

recipient's mother.

30. Homemaker S ervices are defined in the Florida Medicaid

Developmental Service s Waiver Services Coverage and Limitations

Handbook as follows:

Homemaker services are those general

household activities such as meal

preparation , laundry , vacuuming and routine

household cleaning provided by a trained

homemaker, when the person who usual ly

handles these tasks is unable to perform

them. The intent of this service is to

ensure that the beneficiary's home

environment remains clean, safe, and

sanitary.

Homemaker services are provided only when

there is no one else capable of

accomplishing t he household tasks . . . .

* * *

Homemaker services shall be provided in the

beneficiary's own home or family home. This

service is available in the family home only

when there is documentation as to why the

family cannot provide the support . . . . If

approved, homemaker services will be limited

to the beneficiary's primary living areas

such as bedroom and bathroom. This includes

the kitchen and a common area, if regularly

utilized by the beneficiary .

(Emphasis added).

31. On December 11, 2004 , Respondent provided four hours

of Homemaker Services, which were billed in the amount of

$59.20.

32. AHCA concedes that nine of the services provided on

December 11, 2004, were authorized and therefore appropriately

billed: making the bed; changing t he bed sheet s ; throwing

garbage away; cleaning the room; organizing the room; organizing

the clothes; cleaning the bathroom; changing the towels;

organizing the bathroom; vacuuming; cleaning the rugs; and meal

preparation.

33. However, AHCA contends tha t ten other activities

provided on December 11, 2004, were unauthorized: cleaning the

kitchen; washing the dishes; cleaning the tables; cleaning /

organizing the cabinets; cleaning the stove; cleaning the

refrigerator; cleaning the living room; washing lau ndry;

ironing; and cleaning windows. It is evident from Ms.

Satchell's notes (in the "MPI worksheet") that she found these

tasks unnecessary because they occurred "outside of recipient's

bedroom / bathroom." 9 As a consequence, Ms. Satchell concluded

that Respondent was overpaid for one hour of services in the

amount of $14.80

34. Once again, the undersigned cannot agree that

Respondent inappropriately billed for cleaning the kitchen,

washing dishes, and cleaning the stove. Cooking was permitted

by t he service authorization, and there is no allegation that

Respondent should not have billed for the meal that was prepared

for the recipient on December 11, 2004. If a provider is

authorized to prepare a meal, it is only logical that he or she

clean up af terward and bill for the time.

35. Nor can the undersigned agree that Respondent should

not have billed for cleaning the living room, tables, windows,

and refrigerator. These four activities plainly fall within the

services contemplated by the service authorization, which

directed Respondent to provide "the beneficiary with [a] clean

environment" and carry out "general household activities . . .

such as routine cleaning." Moreover, these activities are

comparable to "cleaning rugs," an activity perfor med on the same

date that was not alleged to be improper. Although, as AHCA

point out, these activities may have occurred outside of the

recipient's bedroom and bathroom, that fact is not controlling,

as the Florida Medicaid Developmental Services Waiver Services

Coverage and Limitations Handbook provides that Homemaker

Services extend to "the kitchen and a common area, if regularly

utilized by the beneficiary." 10

36. The undersigned also finds that washing laundry was

not an unauthorized activity, as it falls within the definition

homemaker services. Further, in light of the recipient's

incontinence, washing laundry is obviously essential to

achieving the support plan goal of providing "the beneficiary

with [a] clean environment."

37. The undersigne d does agree with AHCA that ironing and

"cleaning / organizing cabinets" were unauthorized because these

activities were not related to the support plan goals.

38. Based on the findings herein that only two of the

activities were unauthorized (ironing and "cleaning /

organizin g" cabinets), an adjustment should be made to the

alleged overpayment of $14.80.

Recipient No. 6

39. This recipient was auth orized to receive six hours of

Personal Care A ssistance per day. Pursuant to the support plan,

Respon dent was authorized to provide bathing, dressing and

eating assistance to the recipient.

40. On October 17, 2004, Respondent provided six hours of

services to the recipient, at a cost of $120.96.

41. AHCA alleges, correctly, that one of the servic es

provided on that date, cleaning the kitchen, was unauthorized

because the service documentation provided by Respondent

reflects that no meal was prepared. Accordingly, the

undersigned finds that Respondent was overpaid $5.04.

42. Although Respondent has suggested that cleaning the

kitchen may have been necessary due to the recipient (who is

incontinent) defecating on the kitchen floor, no documentation

has been provided that would support such a finding. In the

absence of appropriate documentation, AHCA appropriately found

that an adjustment of one unit was required for the October 17,

2004, services.

43. Respondent also provided six hours of services to the

recipient on November 26, 2004, at a cost of $120.96.

44. With respect to this date, AHCA contends, and the

undersigned agrees, that overbilling for one unit in the amount

of $5.04 occurred, as one of the activities performed,

"organizing clothes," constituted an unauthorized homemaker

service.

45. For the reasons expressed above, AHCA demonstrated by

a preponderance of the evidence overbilling totaling $10.08 with

respect to this recipient.

Recipient No. 7

46. This recip ient was authorized to receive Personal Care

A ssistance. Significantly, the recipient's support plan clearly

i ndicated that her mother prepared meals for her.

47. The service logs indicate that Respondent provided

four hours of services to the recipient on the following dates:

September 4 and November 25, 2003, and February 10 and April 26,

2004.

48. AHCA contends that on each of the four dates listed

above, Respondent provided the unauthorized service of meal

preparation, and as a result, Respondent was overpaid a total of

$18.68.

49. As the recipient's support plan clearly indicated that

meals were p repared by a parent, AHCA has demonstrated an

overpayment of $18.68 by a preponderance of the evidence.

Recipient No. 8

50. Recipient No. 8 was authorized to receive Personal

Care Assistance and Companion Services, both of which were

provided by Res pondent.

51. AHCA alleges that of the eleven claims reviewed

pursuant to the audit, two were problematic. Specifically, AHCA

contends the service logs associated with the personal care

assistance provided on October 26 and November 19, 2004, were

obvio us photocopies of Respondent's service log from March of

2004 for the same recipient. Accordingly, AHCA asserts that the

records submitted by Respondent in connection with the

October 26 and November 19 services were not contemporaneous and

therefore ina dequate.

52. As no contemporaneous records document the services

provided on October 26 and November 19, 2004, AHCA c ontends that

Respondent was overpaid $275.20 ($137.60 for each of the dates).

53. The undersigned has examined the service logs fo r

October and November 2004 for this recipient and finds that they

do not constitute contemporaneous records. As such, Respondent

was overpaid in the amount alleged by AHCA.

Recipient No. 9

54. This recip ient was authorized to receive Homemaker

S ervi ces.

55. AHCA alleges, and the undersigned agrees, that of the

five claims audited, two involved overpayments .

56. In particular, Respondent's service log reveals that

on April 29, 2003, the unauthorized activity of "sho pping" was

performed. As such, Respondent was overpaid in the amount of

$3.70.

5 7 . Further, Respondent's service log indicates that on

January 7, 2004, homemaker activities were provided from 9:00

a.m. through 11:00 a.m., which included shopping and meal

preparation. As noted a bove, shopping is an unauthorized

activity. In addition, the support plan indicates that the

recipient's mother was responsible for preparing meals.

Accordingly, an overpayment of $3.70 occurred with respect to

this date of service.

5 8 . For these re as ons, AHCA has demonstrated a total

overpayment of $7. 40 in connection with this recipient .

Recipient No. 10

5 9 . Recipient No. 10 was authorized to receive Companion

S ervices, which, pursuant to the support plan, were intended to

help the recipient "continue to be exposed to different options

in the community."

60 . AHCA contends that two of the five claims examine d

during the audit are problematic. First, with respect to the

July 29, 2003, claim, Respondent provided no documentation to

support t he $49.44 billed for the four hours of service. As

such, AHCA correctly determined that Respondent was overpaid in

that amount.

6 1 . In ad dition, AHCA properly found that Respondent was

overpaid $3.70 in connection with the September 26, 2003,

services. Specifically, the service log indicates that a meal

was prepared, which is an activity unrelated to the specific

goal s identified in the support plan.

6 2 . Based on the above findings, Respondent was overpaid a

total of $53.14 with respect to this reci pient.

Recipient No. 12

6 3 . Recipient No. 12 was author ized to receive eight hours

of Companion S ervices per week. Pursuant to the support plan

and service authorization, the services were intended to help

the recipient be "socially active in the comm unity." The

support plan further indicated that the recipient was able to

"clean her room, clean the bathroom . . . wash dishes and help

her mother with chores."

6 4 . AHCA correctly alleges that of t he five claims

examined, three involved overpaymen ts .

6 5 . First, for the 32 units of service provided on

December 28, 2003, Respondent was overpaid $3.70 because the

service log indicates that dishwashing was provided. This was

obviously inappropriate because, as noted above, the support

plan expressly provided that the recipient was capable of

washing dishes.

6 6 . Next, Respondent's service log indicates that

dishwashing was performed for the recipient on April 24, 2004.

As such, Respondent was overpaid $3.70.

6 7 . An overpaymen t of $3.70 was al so proven in connection

with the July 3, 2004, services, as the service log demonstrates

that the unauthorized activities of dishwashing and "organizing

the bathroom" were performed.

6 8 . For these reasons, AHCA appropriately determined that

Responde nt was overpaid in the total amount of $11.10 for the

services provided to this recipient during the audit period.

Recipient No. 17

6 9 . This recip ient was authorized to receive Personal Care

A ssist ance and Homemaker S ervices.

70 . Of the twelve claim s reviewed concerning this

recipient, AHCA alleges that only the November 11, 2004,

services are problematic. In particular, a review of the

service logs demonstrates that seven activities billed as

homemaker services for November 11, 2004, were also prov ided and

billed as personal care assistance for the same date.

7 1 . Based upon this unauthorized duplication of services,

AHCA has proven that an overpayment of $14.80 occurred.

Recipient No. 18

7 2 . This recipient was author ized to receive forty hou rs

of Personal Care A ssistance per week. According to the support

plan, the recipient lived alone with her father (who worked full

time) and had little contact with her mother, who lived "far

away" and visited only occasionally on weekends. The support

p lan further provided that the personal care assistance was

intended to provide assistance with "bathing, dressing,

grooming, food preparation, feeding, and transportation to . . .

therapy."

7 3 . AHCA determined, following a review of the service

logs an d other documentation, that Respondent was overpaid in

connection with two of the seven claims reviewed during the

audit.

7 4 . First, AHCA alleges that Respondent was overpaid $7.72

by performing unauthorized homemaker tasks on September 19,

2003, which included shopping, washing dishes (although no meal

was prepared), and assisting with household activities that

would not typically be completed by an eight - year - old child.

7 5 . The undersigned agrees that the activities identified

by AHCA in connectio n with the services rendered on

September 19, 2003, were unauthorized, and that Respondent was

overpaid in the amount of $7.72.

7 6 . AHCA also con tends that Respondent was overpaid $7.72

in connection with the services provided on February 27, 2004.

Spe cifically, AHCA asserts that three of the activities

(shopping, laundry, and washing dishes) were unauthorized

homemaker tasks.

7 7 . It is critical to note that in contrast to the

services provided on September 19, 2003, the provider prepared a

meal (as authorized by the support plan) for the recipient on

February 27, 2004. As such, and for the reasons expressed

previously in this Recommended Order, dishwashing should not be

deemed an unauthorized activity.

7 8 . However, the undersigned concludes that shopping and

laundry, the other two questionable activities performed on

February 27, 2004, were indeed unauthorized.

7 9 . In light of the undersigned's finding that meal

preparation was not an u nauthorized activity, AHCA should make

an appropriate adjust ment to the February 27, 2004, overpayment.

Recipient No. 19

80 . Of the eight cl aims examined for Recipient No. 19 , who

was authorized to receive Companion S ervices, AHCA found fault

with only one.

8 1 . In particular, AHCA determined that of the $59.20

billed on November 26, 2004, Respondent was overpaid $3.70 by

performing the unauthorized homemaker activity of "organizing

bathroom."

8 2 . The undersi gned agrees with AHCA's finding , as

organizing the recipient's bathroom is a homemaker activity t hat

does not fall within the ambit of companion services. As such,

an overpayment of $3.70 occurred.

Recipient No. 20

8 3 . This recipient was authori zed to receive twenty hours

of Companion S ervices per week, which were typically provided in

four hour blocks from 1:00 p.m. to 5:00 p.m.

8 4 . Companion S ervices are defined in the Florida Medicaid

Developmental Services Waiver Services Coverage and Limitations

Handbook as follows:

Companion services consist of non - medical

care, supervision, and socializ ation

activities provided to an adult on a one - on -

one basis. This service must be provided in

direct relation to the achievement of the

beneficiary's goals per his or her support

plan. A companion provider may also assist

the beneficiary with such tasks as meal

preparation , laundry and shopping . . . .

Providers may also perform light

housekeeping tasks, incidental to the care

and supervision of the beneficiary .

(Emphasis added).

8 5 . Significantly, the support plan expressly provided

that the recip ient "receive[d] assistance from her companion in

some house chores, like cleaning the kitchen and meal

preparation to avoid risky situations in the kitchen."

(Emphasis added).

8 6 . AHCA contends that overpayments occurred with respect

to four of the five claims audited.

8 7 . First, AHCA alleges that with regard to t he

November 11, 2003, services, Respondent was overpaid $3.70 by

performing the unauthorized activity of "light housekeeping."

The undersigned cannot agree, as the support plan plain ly

allowed the provider to assist the recipient with "some house

chores," which is indistinguishable from "light housekeeping."

Further, and as noted above, companion services may include

"light housekeeping tasks, incidental to the care and

supervision o f the beneficiary." The service log for

November 11, 2003, demonstrates that supervision was provided to

the recipient. Accordingly, Respondent did not overbill in the

amount of $3.70 for this date of service.

8 8 . Next, AHCA contends that with respe ct to the services

provided on December 10, 2003 (which included non - medical care,

supervision, shopping, and "goals and support plan assistant") ,

one activity was unauthorized: meal preparation. As such, AHCA

alleges that an overpayment of $3.70 occurred .

8 9 . The undersigned concludes, based on the unambiguous

language of the support plan, that meal preparation was

authorized. As detailed above, the recipient "receive[d]

assistance from her companion in some house chores, like

cleaning the kitchen an d meal preparation to avoid risky

situations in the kitchen." (Emphasis added). Accordingly, an

overpayment of $3.70 did not occur with respect to the

December 10, 2003, services.

90 . Turning to the services provided on May 6, 2004, AHCA

contends t hat the unauthorized activity of washing laundry

resulted in an overbilling of $3.70. As referenced in the

definition of companion services previously quoted, laundry may

only be performed "in direct relation to the achievement of the

beneficiary's goals per his or her support plan." In this

instance, the documentation submitted by Respondent fails to

make such a showing. As a result, AHCA correctly found that

$3.70 was overbilled for this date.

9 1 . Finally, with respect to the May 12, 2004, services,

AHCA alleges that Respondent was overpaid $3.70 for the

unauthorized activity of "dishwashing."

9 2 . The undersigned does not agree that dishwashing was

unauthorized, since the support plan contemplated that the

recipient would receive assistance from a "companion in some

house chores, like cleaning the kitchen." As washing dishes is

integral to the process of cleaning a kitchen, Respondent was

not overpaid in connection with this date of service.

9 3 . Based on the above findings, the total overbill ing for

this recipient was $3.70, which related to the May 6, 2004,

services. Respondent was not overpaid in connection with the

services provided on November 11 and December 10, 2003, and May

12, 2004.

Recipient No. 21

9 4 . This recipient was aut horiz ed to receive 20 hours of

Personal Care A ssistance per week, which was typically provided

from 2:00 p.m. through 6:00 p.m. The support plan for this

recipient, who is incontinent, reads in relevant part as

follows:

Food requires modification. Food needs to

be blend [sic] or puree [sic] at all times

to avoid choking . . . . [Recipient] arrives

home around 2:00 p.m. Personal Care service

changes her diaper. Then she prepares her a

snack. She is [sic] assists with eating.

9 5 . AHCA contends that Respond ent was overpaid in

connection with three of the four dates of service examined

during the audit.

9 6 . First, with respect to the services provided on

April 14, 2004, AHCA asserts that two unauthorized activiti es

were performed (organizing clothes and performing a massage ),

which resulted in overbilling of $3.86. Having reviewed the

support plan carefully, the undersigned agrees that these

activities were unauthorized and that an overpayment occurred in

the amount alleged.

9 7 . Turning to the service s provided on October 14, 2004,

AHCA alleges that five unauthorized activities (providing a

massage , wash ing dishes, changing sheets, organizing the

bathroom, and clean ing a table) resulted in overbilling of

$11.58.

9 8 . The undersigned concurs with AHCA' s assertion that the

activities o f "massage," change sheets, organize bathroom , and

clean table were unauthorized.

9 9 . However, overbilling did not occur for washing dishes,

as the service log reveals that a meal was prepared for the

recipient on Octob er 14, 2004, an activity that was expressly

authorized by the support plan. As meal preparation wa s

permitted, washing the dishes constituted a permissible

activity .

100 . In light of the above findings, AH CA should make an

appropriate adjustment to th e overpayment associated with the

October 14, 2004, services.

10 1 . Finally, AHCA contends that with regard to the

December 24, 2004, services , Respondent was overpaid $7.72 by

providing four unauthorized activities: performing a massage,

making the bed , changing towels, and clean ing the living room.

The undersigned agrees that these activities were not approved

and that an overpayment occurred in the amount alleged.

Recipient No. 23

10 2 . Recipient No. 23 was authorized to receive Personal

Care A ssi stance, which was typically provided multiple times

each week for eight hours.

10 3 . AHCA contends that Respondent was overpaid in

connection with eight of the nine claims examined during the

audit.

10 4 . Six of the claims involve identical issues. In

particular, with respect to the services provided on August 29,

2003, and February 2, February 17, April 5, May 28, and

September 13, 2004, AHCA asserts that the unauthorized

activities of "make bed, meal prep, [and] clean table" resulted

in overbilling totaling $60.48 (i.e., $10.08 for each of the six

dates). As it appears from a review of the support plan that

the recipient's mother was able to complete these activities,

the undersigned agrees that overbilling occurred in the amount

alleged.

10 5 . AHCA also alleges, and has demonstrated by a

preponderance of the evidence, that $10.08 was overbilled in

connection with the services provided on August 8, 2003. In

particular, the activities of "played outside, played with

castle set, and lunch" are b eyond the scope of the services

contemplated by the support plan.

10 6 . Finally, AHCA has met its burden with respect to the

alleged $5.04 in overbilling associated with the September 10,

2003, services, as "went to pool" and "watered deck flowers

before dinner" plainly constitute unauthorized activities.

Recipient No. 24

10 7 . As noted previously, Respondent concedes that an

overpayment of $0.96 occurred with respect to this recipient.

Recipient No. 25

10 8 . Recipient No. 25 was authorized to receiv e 16 hours

of Companion S ervices each week to assist with socialization and

supervision. Of the six claims examined during the audit, AHCA

contends that two are problematic.

10 9 . First, with regard to the services provided on

January 29, 2003, AHCA co ntends that the entire billing for that

date ($24.72) should be denied due to inadequate documentation.

In particular, AHCA notes that the service log provided during

the preliminary audit and final audit was different than a log

submitted by Respondent i n April of 2009. Further, the earlier

log is vague (it merely indicates "assist household, escort

activities, other") and fails to address any specific support

plan activities. AHCA also points out that the later log was

incomplete and failed to indicate the date of the activities.

1 10 . AHCA has demonstrated by a preponderance of the

evidence that the services provided on January 29, 2003, were

not adequately documented, and therefore Respondent was overpaid

in the amount of $24.72.

11 1 . Next, AHCA alleges that the services provided on

March 25, 2004, were not adequately documented, and therefore

the entire billing of $44.40 should be denied for that date.

Specifically, AHCA points out that the service log only reads

"supervision" and "escort activi ties" and failed to address any

of the activities enumerated in the support plan. Although a

later service log was submitted, it was incomplete, vague, and

failed to delineate which activities were performed on March 25,

2004, as opposed to the other nine dates of service during that

month.

11 2 . For the reasons detailed above, AHCA demonstrated by

a preponderance of the evidence that the March 25, 2004,

services were not properly documented, and therefore the $44.40

payment should be denied.

Recipi ent No. 26

11 3 . AHCA contends that of the nine claims examined during

the audit concerning this recipient, one should be fully denied

due to the lack of proper documentation.

11 4 . Specifically, AHCA alleges that the $74.00 payment

for the services re ndered on May 31, 2004, should be denied

outright, as the service log for May of 2004 was created by

photocopying the service log for the previous month and changing

the date.

11 5 . The undersigned has examined the documents 11 and

concludes that the May 2004 service log was not

contemporaneously prepared. As a result, AHCA has demonstrated

by a preponderance of the evidence that the $74.00 payment

associated with the May 31, 2004, services should be denied.

Recipient No. 28

11 6 . This recipient was a ut horized to receive Personal Care

A ssistance to address daily needs such as grooming and dressing.

Significantly, the support plan also indicates that meal

preparation was authorized.

11 7 . AHCA contends that with respect to the services

provided on M ay 15, 2003, four unauthorized homemaker activities

were performed: cleaning the bathroom, washing laundry, cleaning

the kitchen, and washing dishes. As a result, AHCA alleges an

overpayment of $12.00, which represents four units of service.

11 8 . AHCA has demonstrated by a preponderance of the

evidence that cleaning the bathroom and washing laundry were

unauthorized.

11 9 . However, AHCA has failed to prove that dishwashing

and cleaning the kitchen were unauthorized, as the provider

prepared a meal ( as indicated by the service log) for the

recipient on May 15, 2003, an activity that was authorized by

the support plan. As explained previously in this Recommended

Order, if a provider is authorized to prepare a meal, then it is

entirely reasonable for t he provider to wash the dishes and

clean the kitchen afterward. This is particularly true with

respect to this recipient, who lived alone with her stepfather

(who , according to the support plan, worked "intensive hours"),

and was incapable of performing b asic tasks (e.g., grooming and

dressing) without assistance.

1 20 . Accordingly, AHCA should make an appropriate

adjustment to the alleged $12.00 overpayment based on the above

findings that cleaning the kitchen and washing dishes were not

unauthorized.

Recipient No. 29

12 1 . Recipient No. 29 was authorized to receive Personal

Care Assistance in the amount of two hours each weekday and five

hours on weekends. Pursuant to the support plan, the recipient

required assistance with basic activities such as dressing,

bathing, brushing teeth, and preparing meals.

12 2 . AHCA contends that overbilling occurred with respect

to four of the eight dates of service examined during the audit.

12 3 . First, AHCA alleges, and has demonstrated by a

preponderance of the evidence that $10.08 was overbilled for the

October 6, 2004, services, as the following unauthorized

homemaker activities were performed: cleaning the recipient's

room, cleaning the bathroom, organizing the room, organizing the

bathroom, and changing towels.

12 4 . In addition, AHCA has proven an overpayment of $10.08

in connection with the November 24, 2004, services, where the

service log demonstrates that unauthorized homemaker activities

(identical to the services identified in the previous paragr aph)

were performed on that date.

12 5 . With regard to the services rendered on December 14,

2004, AHCA has demonstrated overbilling of $10.08 for the

unauthorized homemaker services of cleaning the room and

changing towels.

12 6 . Finally, AHCA alleges , and has demonstrated by a

preponderance of the evidence, a $5.04 overpayment in connection

with the December 29, 2004, services. In particular, the

service logs demonstrate that the unauthorized homemaker

activities of vacuuming, organizing the bathroom , and taking out

garbage were performed.

Recipient No. 31

12 7 . This recip ient was authorized to receive Personal

Care A ssistance, which was provided eight hours per day, Monday

through Friday, and ten hours on both Saturday and Sunday. As

the recipien t is a quadriplegic, personal care assistance was

obviously necessary for feeding and maintaining personal

hygiene.

12 8 . Of the nine claims examined during the audit

concerning this recipient, AHCA alleges that overbilling

occurred with respect to two.

12 9 . First, with regard to the October 27, 2003, services,

AHCA contends that insufficient documentation was provided by

Respondent to support ten hours of billing. In particular, AHCA

asserts that "ate well" is the only activity described in the

cont emporaneous service log. 12 As a result, AHCA argues that one

hour of billing should be permitted for meal prep, and that the

remaining billing in the amount of $181.44 should be disallowed.

1 30 . Contrary to AHCA's contention, "ate well" is not the

only event described in the contemporaneous service log.

Significantly, the log also reads, "Incontinent B & B." Given

the recipient's physical condition, this notation obviously

means that the service provider was required to address at least

one episode of bladder and bowel incontinence during the ten

hours of service. As such, billing should be permitted for

toileting.

13 1 . Based on the above finding that services were

do cumented for toileting, AHCA should make an appropriate

adjustment to the Octob er 27, 2003, overpayment.

13 2 . Next, AHCA contends that that due to inadequate

documentation, overbilling of $161.28 occurred with regard to

the ten hours of services provided on February 16, 2004. In

particular, AHCA contends that the documentation s ubmitted by

Respondent supports only two hours of billing, as bathing was

the only activity described in the contemporaneous service log.

13 3 . Once again, however, the contemporaneous service log

also indicates that the service provider was required to a ddress

the recipient's bladder and bowel incontinence. Accordingly,

additional billing should be permitt ed for toileting, and AHCA

should make an appropriate adjustment to the February 16, 2004,

overpayment.

Recipient No. 32

13 4 . Recipient No. 32 was authorized to receive Personal

Care Assistance and Companion S ervices.

13 5 . AHCA contends that Respondent was overpaid in

connection with eight of the fifteen claims examined pursuant to

the audit.

13 6 . With respect to the services provided on Marc h 21 and

23, 2003, AHCA has demonstrated by a preponderance of the

evidence that Respondent was overpaid $61.80 in connection with

each of the two dates (totaling $123.60) where the documentation

does not support the units of service billed.

13 7 . Next, AHCA contends, and the undersigned agrees, that

Respondent inappropriately billed for recreational activities in

connection with the personal care assistance services provided

on August 13, 2003, and December 1, 2003. As a result, $3.86

was overbilled fo r each date, for a total of $7.72.

13 8 . AHCA also alleges, and has demonstrated by a

preponderance of the evidence, that unauthorized homemaker

activities were billed in connection with the companion services

rendered on October 7 and 11, 2003, and Dec ember 2, 2003, which

resulted in overbilling of $11.10, $11.10, and $7.40,

respectively. In particular, the service logs indicate that

meal prep, laundry, and housekeeping were performed on October 7

and 11, 2003, and that laundry and housekeeping were pr ovided on

December 2, 2003.

13 9 . Finally, AHCA has proven an overpayment of $15.44

with respect to the personal care assistance services provided

on March 25, 2004. Specifically, the service log indicates that

the service provider "walked the dog" and " checked live bait,"

tasks which do not fall within the scope of personal care

assistance.

1 40 . Based on the above findings, AHCA demonstrated a

total overpayment of $176.36 with respect to this recipient.

Recipient No. 33

14 1 . This recipient was auth orized to r eceive three hours

per week of Companion S ervices, which were intended to "increase

awareness of community resources and increase community

integration skills."

14 2 . AHCA alleges that Respondent was overpaid in

connection with one of the two c laims examined during the audit.

Specifically, with respect to the services provided on July 15,

2003, the only activities described in the service log are

"shopping" and "exercise." AHCA contends, and the undersigned

agrees, that neither shopping nor ex ercise constitute goal

oriented activities in under the circumstances of this

recipient.

14 3 . Accordingly, AHCA has demonstrated an overpayment of

$15.44, which represents one hour of billing.

Recipient No. 34

14 4 . This recipient was authorized t o receive Personal

Care A ssistance. Pursuant to the support plan, the recipient

lived with her able - bodied mother and older brother.

14 5 . Of the five claims examined during the audit, AHCA

contends that Respondent was overpaid with respect to two.

14 6 . First, AHCA alleges that $5.29 was overpaid in

connection with the August 4, 2004, services, where the service

log suggested that the provider took the recipient to the park.

The undersigned has examined the monthly summary, and agrees

with AHCA's ass essment of the documentation. Accordingly, AHCA

has demonstrated an overpayment in the amount alleged.

14 7 . Turning to the services provided on December 9, 2004,

AHCA has demonstrated an overpayment of $5.29 by a preponderance

of the evidence, as "cle aning the living room" is an activity

that could have been performed by the recipient's mother.

CONCLUSIONS OF LAW

Jurisdiction

14 8 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Secti ons 120.569 and 120.57(1), Florida Statutes (2010) .

Recovery of Overpayments and Burden of Proof

14 9 . AHCA is empowered to "recover overpayments . . . as

appropriate." § 409.913, Fla. Stat. An "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." § 409.913(1)(e), Fla. Stat. Speci fically,

as well, AHCA is authorized to "require re payment 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." § 409.913(10 ), Fla. Stat. 13

1 50 . The bu rden of establishing an alleged Medicaid

overpayment by a preponderance of the evidence falls on

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

Care Admin. , 653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe

Pharmacy v. Department of Healt h and Rehabilitative Services ,

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

15 1 . Although AHCA bears the ultimate burden of persuasion

and thus must present a prim a facie case, Section 409.913(21 ), 14

Florida Statutes, provides that "[t]he audit report, suppo rted

by agency work papers, showing an overpayment to the provider

constitutes evidence of the overpayment." Thus, AHCA can make a

prima facie case , and did so in the instant cause, merely by

proffering a proper ly supported audit report, which must be

rec eived in evidence. See Maz Pharmaceuticals, Inc. v. Agency

for Health Care Administration , DOAH Case No. 97 - 3791, 1998 Fla.

Div. Adm. Hear. LEXI S 6245, *6 - 7 ( DOAH March 20, 1998). It is

then " incumbent upon the provider to rebut, impeach, or

otherwise un dermine AHCA's evidence." See Agency for Health

Care Admin. v. Bagloo , DOAH Case No. 08 - 4921 (DOAH September 10,

2009). 15

15 2 . Section 409.913 , Florida Statutes, spells out the

duties of providers who make claims under Medicaid:

(7) When presenting a cla im 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 cla im, 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 - covered goods or services

that are medical ly 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 by records made at the

time the goods or se rvices 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 documente d in the recipient's

medical record.

(Emphasis added).

15 3 . Applying the foregoing principles to the findings of

fact contained herein, the undersigned concludes that AHCA has

met its burden of proof that Respondent was overpaid in the

total amounts a llege d with respect to the following recipients :

Recipient No. 6: $10.08

Recipient No. 7: $18.68

Recipient No. 8: $275.20

Recipient No. 9: $7.40

Recipient No. 10: $53.14

Recipient No. 12: $11.10

Recipient No. 17: $14.80

Recipient No. 19: $3.70

Recipient No . 23: $75.60

Recipient No. 24: $0.96

Recipient No. 25: $69.12

Recipient No. 26: $74.00

Recipient No. 29: $35.28

Recipient No. 32: $176.36

Recipient No. 33: $15.44

Recipient No. 34: $10.58

15 4 . With respect to Recipient No. 1, AHCA demonstrated by

a prepo nderance of the evidence that four unauthorized

activities were performed on November 12, 2004. However, as

discussed in paragraph s 26 through 28 of this Recommended Order ,

the undersigned has determined that two activities (clean ing the

kitchen and wash i ng dishes) were appropriately furnished. As

such, AHCA should recalculate the overpayment.

15 5 . Turning to R ecipient No. 3, of the numerous

activities alleged to be unauthorized in connection with the

December 1, 2004, services, AHCA only met its burd en of proof

with regard to two: organizing cabinets and ironing.

Accordingly, AHCA should make an appropriate adjustment to the

overpayment.

15 6 . With regard to Recipient No. 18 , the undersigned

concludes as follows :

September 19, 2003, services: AHCA has proven by a

preponderance of the evidence that Respondent was o verpaid

$7.72 for activities provided on that date .

February 27, 2004, services: AHCA failed to prove that

washing dishes was unauthorized, but met its burden with

respect to the other una uthorized activities. As such,

AHCA should adjust the overpayment for this date.

15 7 . With respect to Recipie nt No. 20, the undersigned

concludes:

May 6 , 2004, services: AHCA has demonstrated that

Respondent was overpaid $3.70 for the services provided on

May 12, 2004.

November 11, 2003, services: AHCA failed to prove any

overpayment.

December 10, 2003, services: AHCA failed to prove any

overpayment.

May 12, 2004, services: AHCA failed to prove any

overpayment.

15 8 . Turning to Recipient No. 21, t he undersigned

concludes:

April 14, 2004, services: AHCA has demonstrated an

overpayment of $3.86 by a preponderance of the evidence.

October 14, 2004, services: AHCA failed to prove that

washing dishes was unauthorized, but met its burden with

respect to the other unauthorized activiti es. As such,

AHCA should adjust the overpayment for this date.

15 9 . With respect to Recipient No. 28, AHCA has proven by

a preponderance of the evidence that two activities performed on

May 15, 2003, were unauthorized. H owever, AHCA failed to prove

that Respondent was not entitled to bill for cleaning the

kitchen and washin g dishes. Therefore, AHCA should make an

appropriate adjustment to the overpayment.

1 60 . Finally, turning to Recipient No. 31, AHCA shall

adjust t he overpayments associated with the October 27, 2003,

and February 16, 2004, services, in accordance with the

undersigned's finding that the service provider was required to

address the recipient's incontinence on both dates.

16 1 . Subsection 409.913(24 )(b), 16 Florida Statutes,

provides that overpayments owed to AHCA bear interest at the

rate of 10 percent per year from the date of determination of

the overpayment by the agency .

16 2 . Finally, although the imposition of a fine is

authorized by Subsection 409.913(15)(c), Florida Statutes, 17

Petitioner's Proposed Recommended Order does not request such a

penalty. Accordingl y, the undersigned has elected to omit a

fine from his recommendation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is Recommended that AHCA:

(1) Make appropriate adjustment s to the empirical

overpayment;

(2) Recalculate the probable total overpayment using the

adjusted empirical overpayment and the statistical formula

previously employed , an d enter a final order requiring

Respondent to repay AHCA the amount determined through such

recalculation ;

(3) The final order should further require Respondent to

pay interest at the rate of 10 percent per annum on the

recalculated total overpayment.

D ONE AND ENTERED this 2 3rd day of November, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________________

Edward T. Bauer

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 2 3rd day of November , 2010.

ENDNOTES

1 This handbook, which was incorporated by reference into

Florida Administrative Code Rule 59G - 8.020(12) , was in effect

from November 1996 through November 2003. As such, the handbook

applies to some, but not all, of the services provided by

Respondent in this case, which occurred during various dates in

2003 and 2004.

2 The Florida Medicaid Provider General Handbook, which was

incorporated by reference into Florida Administrative Code Rule

59G - 5.020 (1), was in effect from October through July 2008, and

there fore applies only to services that were provided within

those dates.

3 The Florida Medicaid Developmental Services Waiver Services

coverage and Limitations Handbook, July 2002, was incorporated

by reference into Florida Administrative Code Rule 59G -

8 . 200(12). This handbook was in effect from October 2002

through June 2005, and applies to all of the disputed claims in

this case.

4 See Agency for health Care Admin. v. Custom Mobility, Inc. ,

995 So. 2d 984 (Fla. 1st DCA 2008).

5 Petitioner's Exh ibit H, which consists of a spreadsheet that

details the 255 claims, erroneously indicates in the "Grand

Total" column (on page 25 of the exhibit) that 190 claims were

allowed. This total should instead read 197, as seven allowed

claims with respect to Re cipient No. 6 were not marked in the

"Allow" column on page three of Exhibit H, and were therefore

omitted from the "Grand Total."

6 The undersigned will use the term "empirical overpayment" to

reference the sum of all amounts received by Respondent in

e xcess of Medicaid - authorized amounts on the claims made during

the audit period. The term "probable total overpayment" will

refer to the total amount that Respondent was likely overpaid on

claims made during the audit period in connection with the

entire population of recipients served, as determined through

the use of a statistical formula.

7 The undersigned will refer to the recipients by the numbers

assigned during the audit, which are enumerated in Petitioner's

Exhibits F and H.

8 See pages 2 - 48 and 2 - 49 of the Florida Medicaid Developmental

Services Waiver Services Coverage and Limitations Handbook.

9 See Petitioner's Exhibit F, page 56.

10 The support plan demonstrates that the recipient is mobile

( although with poor balance), so it is r easonable to infer that

the recipient "regularly utilize d " the common areas of the home.

11 See Petitioner's Exhibit F, pages 341 - 342.

12 Although a more detailed checklist was prepared, it was

considered a non - contemporaneous record because Responde nt

provided it to AHCA after the final audit report was issued.

13 This provision has been renumbered as Su bsection 409.913(11),

Fla. Stat. (2010).

14 This provision has been renumbered as Subsection 409.913(22),

Fla. Stat. (2010).

15 In it s Proposed Recommended Order, AHCA contends that because

Respondent "put forth no additional written documentation which

effectively overcame the Agency's prima facie determination of

Medicaid overpayments," the undersigned is required to find that

Respond ent was overpaid $312,773.67, the amount alleged. While

it is true that Respondent did not introduce any documentary

evidence at the final hearing, Respondent was free to undermine

or rebut particular overpayment allegations by referring to the

support pl ans and other exhibits introduced by AHCA.

16 This provision h as been renumbered as Subsection

409.913(25)(c), Fla. Stat. (2010).

17 This provision has been renumbered as Subsection

409.913(16)(c) , Fla. Stat. (2010).

COPIES FURNISHED :

Joseph W. Gibson, Esquire

19 West Flagler Street, Suite 620

Miami, Florida 33130

L. William Porter, II, Esquire

Agency for Health Care Administration

Fort Knox Executive Center III

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahass ee, Florida 32308

Thomas W. Arnold, 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.