11-002892MPI Agency For Health Care Administration vs. Florida Hospital Orlando Status: Closed Recommended Order on Thursday, May 3, 2012.

Summary: Agency for Health Care Administration presented evidence to support the overpayment to Respondent as patients did not require emergency care and were undocumented aliens.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2892MPI

)

FLORIDA HOSPITAL ORLANDO , )

)

Respondent . )

)

RECOMME NDED ORDER

Pursuant to notice , this case was heard in Tallahassee,

Florida, on February 1, 2012, before J. D. Parrish, an

Administrative Law with the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Andrew T. Sheeran, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building 3, Mail Station 3

Tallahassee, Florida 32308

For Respondent: John D. Buchanan, Jr., Esquire

H enry, B uchanan, H udson,

S uber and C arter , P. A.

Post Office Box 14079 (32317)

2508 Barrington Circle

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Petitioner, Ag ency for Health Care Administration

(AHCA or Agency), is entitled to a recoupment of Medicaid funds

paid to the Respondent, Florida Hospital Orlando (Respondent),

that were overpayments for medical services rendered to

undocumented aliens during the audit period.

PRELIMINARY STATEMENT

This is a Medicaid overpayment recoupment case based upon

an alleged overpayment made to Respondent for six patients. The

audit period in this matter dates back to 2005. Essentially,

Petitioner maintains that Medicaid paymen ts for medical services

rendered to undocumented aliens may only be paid for services

rendered during the period of emergency for the patient. In

other words, for medical services rendered to such patients who

are not in a medical emergency, Medicaid is n ot available. AHCA

maintains that although the services may be medically necessary

or appropriate treatment, unless the patient (always in this

cause , an undocumented alien) is in an emergency medical state,

Medicaid may not be held responsible for the tr eatment of such

individual.

In contrast, Respondent argues that all treatment provided

to the patients in this case was medically necessary, was

approved by the Agency fiscal agent, and has been untimely

challenged. Respondent claims that to use hindsight as the

standard for review is inappropriate as these patients were

treated within the medical standard of care.

AHCA issued its Final Audit Report (FAR) on or about

May 18, 2011. Six patients were identified in the report who

received medical services f rom Respondent during the audit

period, July 1, 2005 , through December 31, 2005. The six

patients are identified in the record by their initials. For

convenience, in this Order the patients, each of whom had unique

medical conditions, are identified as P atients 1 through 6.

Also for convenience , each is identified in the masculine

regardless of actual gender . Each patient is or was an

undocumented alien who received medical treatment at Florida

Hospital Orlando.

Based upon the FAR, the Agency claims Res pondent was

overpaid $42,450.90. That amount was later adjusted to consider

factors not at issue and to add costs of the audit. The amount

now claimed is $40,353.45. Respondent timely disputed the claim

and requested an administrative hearing to contest the AgencyÓs

findings.

The case was forwarded to DOAH for formal proceedings on

June 9, 2011. At the hearing , the parties stipulated to the

admission of numerous exhibits. PetitionerÓs Exhibits 1 through

22 and RespondentÓs Exhibits 1 through 27 are f ully identified

in the appendix attached to the Transcript of the proceedings

that was filed February 1, 2012. The record did not close until

February 27, 2012, the date a late deposition was filed

(Deposition of Christine Howd). From that date , the par ties

were granted 30 days within which to file their p roposed

r ecommended o rders. Both timely filed proposals that have been

fully considered in the drafting of this Recommended Order.

FINDINGS OF FACT

The Parties

1. AHCA is the state agency charged wi th the

responsibility of monitoring and administering the Medicaid

program within the State of Florida. AHCA conducts audits , as

provided by law , to assure compliance with all pertinent state

and federal regulations. As required, AHCA issues audit report s

to document a Medicaid providerÓs performance during a specified

audit period.

2. At all times material to this case, Respondent was a

Medicaid provider who received payments for medical services

rendered to the Medicaid patients identified in this Or der.

Respondent complied with all regulations and procedures to

secure payment for medical services rendered to patients ,

including approval from AHCAÓs fiscal agent. The fiscal agent

is referred to , in this record , as KePro. It is undisputed that

the m edical services were provided to the patients.

The Audit

3. The audit period in this case is July 1, 2005 , through

December 31, 2005. It is undisputed that Respondent provided

all of the medical services rendered to the patients described

in this matter during that time frame. The payments for such

care, however, were not completed until a time in 2008 that was

less than three years from the issuance of the FAR. At all

times material to this case, Medicaid providers were required to

maintain financial r ecords for a period not less than five

years. All of the medical treatments were approved by KePro.

4. All of the patients identified in the instant FAR were

or are undocumented aliens. Medicaid allows a provider to

render medical care to undocumented a liens only as provided by

law.

5. In this regard, only emergency medical care is covered

for undocumented aliens. Medical care that may be entirely

necessary or appropriate , but is not rendered as Ðemergency

careÑ may not be reimbursed. The FAR seeks re coupment of

Medicaid monies paid to Respondent for non - emergency care

rendered to undocumented aliens.

The Patients

6. Patient 1 presented to RespondentÓs emergency room on

October 31, 2005, with a history of nausea, vomiting, and an

elevated creatinine i ndicating renal failure. Patient 1 was

73 years old and reported abdominal pain through an interpreter.

Additionally, Patient 1, who was on a cardiac medication, had an

elevated potassium level and cardiac arrhythmia.

7. Given Patient 1Ós age and con dition , it was medically

necessary to admit the patient for cardiac monitoring and

evaluation. At the time of admission , Patient 1 required

emergency care.

8. Renal failure and cardiac arrhythmia may indicate a

life - threatening condition. RespondentÓs t reatment of Patient 1

continued and discovered an enlarged heart, chronic lung

disease, along with renal concerns. Under RespondentÓs care

Patient 1 returned to a regular cardiac rhythm, was rehydrated,

and potassium and creatinine levels returned to a no rmal range.

On November 2, 2005, Patient 1Ós vital signs were stabilized.

9. Thereafter, Patient 1 remained in the hospital and was

monitored until release on November 4, 2005.

10. Patient 2 presented to RespondentÓs emergency room on

October 31, 2005 . Outpatient services rendered for this patient

had failed to alleviate an infection in the patientÓs right

hand. At 88 years of age, if left untreated Patient 2 was in

danger of losing a finger if the swelling and infection were not

contained. Given Pa tient 2Ós history of diabetes, the concern

for spread of the infection to other portions of the hand

resulted in admission to the hospital for emergency care.

11. Patient 2 was put on an IV - treatment and the finger

was surgically addressed to drain and re move infectious areas.

By November 2, 2005, the finger was clinically Ðlooking goodÑ

and the antibiotic treatment had started to address the

infection. Emergency care was no longer necessary to address

the patientÓs medical needs. Patient 2 remained in the hospital

until November 4, 2005.

12. Patient 3 was another 88 - year - old who presented to

Respondent with an extended history of diarrhea and abdominal

pain. On December 25, 2005, Patient 3 was admitted with an

elevated white blood cell count, a low potassium level, and

dehydration. Given the patientÓs age and circumstance , it was

medically necessary to rehydrate Patient 3 with IV - fluids and to

monitor renal sufficiency due to rising creatinine levels .

13. After several gastro/intestinal examinati ons,

antibiotic treatment, and elimination of the diarrhea , the

patient was released on January 5, 2006. Patient 3 required

emergency medical care for the entire stay due to the patientÓs

age and hydration issues. As the patient did not accept oral

medic ation, the IV - treatments assured continued hydration,

potassium improvement, and the administration of antibiotics.

Without such care, Patient 3Ós health would have deteriorated to

a potentially life - threatening situation. On the patientÓs day

of dischar ge, Patient 3 was considered medically stable.

14. Patient 4 was a nonverbal autistic child who was

brought to Respondent on August 31, 2005. This patient was

removed from an inappropriate home setting and taken into

custody by the state to protect the c hildÓs safety and health.

When he presented at the emergency room , this patient did not

have a medical condition that warranted admission to the

hospital. The child was taken to the hospital for medical

evaluation but only a ÐsocialÑ emergency existed. That is to

say, the child had nowhere to go. Although , technically , in the

stateÓs custody, a foster home appropriate for Patient 4Ós

challenges had to be found before placement could be made. It

is undisputed that the child could not be discharged to th e

street ; however, no emergency medical care was necessary for

this patient.

15. Patient 5 was admitted to Respondent on October 25,

2005, as a transfer patient from Glades Hospital. This patient

was eva c uated from Glades due to a hurricane. Patient 5 spoke

only Creole, was 80 years of age, and had suffered a recent

heart attack. Glades Hospital stabilized the patient

sufficiently for transfer into RespondentÓs cardiac care unit.

16. Although Respondent sought to perform a cardiac

catheterization for this patient in order to evaluate the

patientÓs heart function, Patient 5Ós family refused consent.

Respondent continued care for this patient with monitoring and

medication , and Patient 5 remained stab le . Respondent sought a

family member to whom disch arge could be made. A son was not

located until days later. Patient 5 did not require emergency

care while Respondent waited for a discharge disposition.

17. Patient 6 was 67 years old with a long history of a

disease called ulcerative colitis. When th is patient presented

at RespondentÓs emergency room, September 3, 2005, there was

gastro/intestinal bleeding, pain, and what was presumed to be

diverticulitis. Given his inflammatory bowel disease, bleeding ,

and pain , Patient 6 had a medical emergen cy and had to be

quickly treated to resolve the Ðacute flareÑ of this case .

18. Respondent treated Patient 6 with IV - fluids,

antibiotics, and medication to decrease inflammation. Patient 6

responded well to the treatment and , by September 4, 2005, was

not in a n emergent condition. Patient 6 remained in the

hospital until September 5, 2005.

Recoupment of Medicaid Overpayments

19. Based upon the foregoing findings, and the persuasive

weight of the evidence presented by the parties, it is

determined:

A. As to Patient 1, emergency medical care was not

required for this patient subsequent to November 2, 2005;

B. As to Patient 2, emergency medical care was not

required for this patient subsequent to November 2, 2005;

C. As to Patient 3, prior to discharge on Ja nuary 5, 2006,

the date upon which this patient was stabilized, all of Patient

3Ós care was rendered as emergency medical care;

D. As to Patient 4, none of this patientÓs care was

required as emergency medical care;

E. As to Patient 5, emergency medical care was not

required for this patient subsequent to October 27, 2005; and

F. As to Patient 6, emergency medical care was not

required for this patient subsequent to September 4, 2005.

20. Since Respondent received Medicaid payments for the

above - describ ed patients after the patient no longer required

emergency care , Petitioner is entitled to a recoupment of

Medicaid payments.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of the se

proceedings. § 120.57(1), Fla. Stat. (2011).

22. As the party asserting the overpayment, Petitioner

bears the burden of proof to establish the alleged overpayment

by a preponderance of the evidence. See Southpointe Pharmacy v.

Dep Ó t of HRS , 596 So. 2 d 106 (Fla. 1st DCA 1992). In this case,

Petitioner has met its burden , except as to Patient 3. .

23. The FAR supports and constitutes evidence of the

overpayment claimed. Although the evidence presented at hearing

differed slightly from the conclusions reached by the FAR, in

light of the totality of all evidence presented in this cause

AHCA should recover the overpayment as modified herein.

24. Respondent's assertion that AHCA is estopped from

pursuing its recoupment claim is without merit. Equitable

e stoppel against an entity, such as AHCA, is rare. Respondent

has not shown exceptional circumstances that would warrant

equitable estoppel in this case. See Assoc . Indus . Ins . Co .,

Inc. v. State of Fla . , Dep Ó t of Labor & Emp . Sec . , 923 So. 2d

1252 (Fla. 1st DCA 2006). Prior approval by KePro does not

estop AHCA from pursuing overpayment claims when an audit does

not support the charges and services billed to Medicaid. AHCA

has the daunting task of chasing monies already paid to

providers who may or may not have submitted accurate or truthful

information to KePro. Prior approval does not justify payment

when contrary to law. AHCA must always protect the Medicaid

funds it is challenged to conserve so that bona fide recipients

receive the medical care the y require.

25. For purposes of this case, "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,

ab use, or mistake. See § 409.913(1)(e), Fla. Stat.

26. Federal law limits Medicaid services available to

undocumented aliens to those which are Ðnecessary for the

treatment of an emergency medical condition of the alien.Ñ See

42 U.S.C. § 1396b(v)(2).

27. ÐEmergency medical conditionÑ is a medical condition

of such severity that in the absence of medical treatment the

patientÓs health is in serious jeopardy, may suffer serious

damage to bodily functions, or serious dysfunction of any bodily

organ or part. Routine medical care although entirely

appropriate or medically necessary may not qualify as Ðemergency

care.Ñ The full definition of this term is provided at 42

U.S.C. § 1396b(v)(3). All of the findings reached above are

consistent with this definitio n and the testimony of the

witnesses.

28. At no time did AHCA approve medical care for

undocumented aliens that did not meet the foregoing standard.

29. The final payments to Respondent for the treatment of

Patients 1 through 6 w ere not made until 2008 . The FAR was

issued within three years of that time. Accordingly, the claim

is not barred by a statute of limitations. See § § 95.11 and

409.913, Fla. Stat.

30. Pursuant to law, AHCA is entitled to recover all

investigative, legal, and expert witness c osts if the Agency

ultimately prevails. In this case , the amount sought by AHCA is

$2,147.64 , and it is entitled to recover that amount. See

§ 409.13(23), Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RE COMMENDED that the Agency for Health Care

Administration enter a Final Order finding Respondent was

overpaid in the amount of $24,055.51 (the full audit amount less

the claim for Patient 3) together with costs for a total of

$26,203.15.

DONE AND ENT ERED th is 3r d day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3r d day of May , 2012 .

COPIES FURNISHED :

John D. Buchanan, Jr., Esquire

Henry, Buchanan, Hudson,

Suber, and Carter, P.A.

Pos t Office Drawer 14079

2508 Barrington Circle (32308)

Tallahassee, Florida 32317 - 4079

Andrew T. Sheeran, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building 3 , Mail Station 3

Tallahassee, Florida 32308

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

William H. Robe rts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

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.