11-002897MPI Agency For Health Care Administration vs. Jairo's Medical Equipment, Inc. Status: Closed Recommended Order on Friday, October 7, 2011.

Summary: Respondent, a durable medical equipment provider, found to have violated two of seven counts of failure to comply with Medicaid rules. Fine imposed for two first offense violations pursuant to F.A.C. 59G-9.070(7)(e).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 11-2897MPI

)

JAIRO'S MEDICAL EQUIPMENT, )

INC., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to sections

120.569 and 120.57(1), Florida Statutes 1 before Administrative

Law Judge Jessica Varn of the Division of Administrative

Hearings (DOAH). The hearing was held on August 10, 2011, by

video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Kristina Schlieter, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

L. William Porter II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

For Respondent: Alain Rosello, Qualified Representative

15205 Southwest 13th Terrace

Miami, Florida 33194

Emilsa Lopez, President

Jairo's Medical Equipment, Inc.

1823 Ponce De Leon Boulevard

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Respondent violated section 409.913, Florida

Statutes, by failing to retain required Medicaid records and by

failing to provide the required training prior to setting up

medical equipment, thereby incurring a $7,000 fine according to

Florida Administrative Code Rule 59G-9.070(7)(e).

PRELIMINARY STATEMENT

By letter dated May 3, 2010, the Agency advised Respondent

of its intent to apply sanctions for violations of federal and

state laws, including the failure on five occasions to retain

separate pulse oximetry testing results, either through copies

of physicians' office notes documenting pulse oximetry test

results or through pulse oximetry test results obtained from a

laboratory. The Agency also intended to apply a sanction for

the failure, on one occasion, to retain a copy of a Certificate

of Medical Necessity (CMN) that contained pulse oximetry test

results that are dated, at the most, thirty days before the

prescribing physician's dated signature on the CMN. Lastly, the

Agency intended to apply a sanction for the failure, on one

occasion, to have a licensed professional supervise the

placement and set up of oxygen equipment in the recipient's

residence. The letter directed Respondent to pay a $7,000 fine

for the alleged violations.

On or about May 25, 2011, Respondent requested a hearing on

the Agency's imposition of the sanction. The matter was

referred to DOAH on June 9, 2011, for the assignment of an

administrative law judge to conduct a formal hearing and to

submit a recommended order to the Agency.

Pursuant to notice, the final hearing in this case was

conducted on August 10, 2011. At the hearing, the Agency

presented the testimony of Gina Selwitz; Agency's Exhibits 1-5,

7, 10-15, and composite exhibits 6, 8, and 9 were offered and

received into evidence. The Respondent presented the testimony

of Emilsa Lopez; Respondent's Exhibits 2-8 2 , and composite

exhibit 1 were offered and admitted into evidence 3 .

The Transcript of the proceedings was filed with DOAH on

September 14, 2011. The parties timely filed Proposed Findings

of Fact and Conclusions of Law, which have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Jairo's Medical Equipment is a durable medical

equipment provider. One function of the company is to provide

and maintain oxygen equipment to Medicaid recipients.

Mrs. Lopez (Lopez) is the owner and manager of Jairo's Medical

Equipment.

2. On March 31, 2011, the Agency conducted an unannounced

on-site inspection of the medical records retained by

Respondent. Ms. Gina Selwitz, along with two other

investigators, conducted this investigation. The investigators

requested a list of documents, including licensing documents,

insurance records, and medical records for ten different

Medicaid recipients.

3. Lopez immediately provided licensing and insurance

records, but needed more time to copy the medical files

requested. The investigators gave Lopez a few days to copy and

provide the requested medical files for ten Medicaid recipients.

4. Complete medical records on each patient, including

pulse oximetry test results, were provided on the day of

collection.

5. On at least three separate occasions after the initial

production of records, the Agency called Lopez to ask for

maintenance and repair records, licensing information, and FBI

background information records. These records had been listed

in the initial demand for records, but the Agency could not find

them in the records that Respondent had already provided. The

Agency did not indicate that the required pulse oximetry test

results were missing from the medical records. Lopez promptly

faxed the maintenance and repair records, licensing information,

as well as the FBI information.

6 . There was conflicting testimony as to whether the pulse

oximetry test results for five patients were included in the

medical records collected during the investigation. Ms. Selwitz

testified that she did not receive the pulse oximetry test

results until after the sanction letter was sent to Respondent.

This testimony is unpersuasive because, the undersigned infers,

had the pulse oximetry test results been missing in the medical

records, the Agency would have requested them again, which it

never did. In contrast, Lopez testified that she did provide the

pulse oximetry test results in the initial records production.

The undersigned credits Lopez's testimony, which is both

credible and consistent with the fact that the Agency requested,

after the investigation, other documents that could not be

located in the records that Respondent had produced.

7. At the hearing, Ms. Selwitz testified that Lopez signed

a "Completeness of Records" form at the conclusion of the

investigation, but no such form was admitted into evidence.

8. As a result of this inspection, the Agency found seven

violations of Medicaid policies. On five occasions, Respondent

was charged with failing to retain separate pulse oximetry

testing results, either through copies of physician's office

notes or through separate results obtained from a laboratory.

9. As to the sets of records for five Medicaid recipients 4 ,

the undersigned finds that each medical file contains pulse

oximetry test results from either a physician or a laboratory.

Respondent did retain the necessary pulse oximetry test results

in the medical files of those five patients.

10. The Agency also charged Respondent with a failure to

retain a copy of a Certificate of Medical Necessity (CMN) that

contained pulse oximetry test results dated no more than 30 days

from the prescribing physician's dated signature on the CMN.

11. The records for patient S.R. indicate that the CMN was

dated July 26, 2010, but the pulse oximetry test result was

dated May 19, 2010. This span of time is beyond the 30-day

maximum amount of days allowed between the date of the CMN and

the date of the pulse oximetry test.

12. Lastly, Respondent was charged with failing to have a

licensed professional supervise the placement and set up of

oxygen equipment in a recipient's residence.

13. The records for patient V.P. reveal that Lopez

delivered oxygen equipment to the patient's home on

September 10, 2010, set up the equipment, and signed a form

indicating that she had trained the patient on how to use the

equipment. Lopez is not certified to do such training. Lopez

did not, however, train the patient on how to use the equipment.

Because the patient was admitted to the hospital, the equipment

was not actually used until October 31, 2010. At that point,

the patient did receive training from a certified professional.

Respondent billed Medicaid for this oxygen equipment for the

months of September and October, even though the equipment was

not used, and the patient had not been trained on how to use the

equipment.

14. Of the seven counts against Respondent, only two are

supported by the evidence. Respondent provided copies of the

pulse oximetry test results for the five patients in question;

therefore, counts 1-5 are baseless. There is evidence, however,

that Respondent failed to retain a copy of a CMN dated, at most,

thirty days after the pulse oximetry testing results. There is

also evidence that Respondent billed Medicaid for two months of

oxygen equipment use when the proper training had not been

completed.

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120,

Florida Statutes.

16. AHCA is statutorily charged with the responsibility of

operating 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 impose sanctions as appropriate. § 409.913,

Fla. Stat.

17. Section 409.913(9), Florida Statutes, requires

Medicaid providers to retain medical, professional, financial,

and business records pertaining to services and goods furnished

to a Medicaid recipient and billed to Medicaid. Florida

Administrative Code Rule 59G-9.070(7)(e) provides that the

Agency may sanction a provider with a $1,000 fine per claim

found to be in violation of the Medicaid rules, if it is a first

offense. It may do so, however, only if the violation is proven

by clear and convincing evidence. See Dep't of Banking & Fin.,

Div. of Sec. & Inv. Prot. v. Osborne Stern and Co. , 670 So. 2d

932, 935 (Fla. 1996).

18. The Medicaid DME and Medical Supply Services Coverage

and Limitations Handbook, at page 2-68, requires that oxygen

equipment providers retain pulse oximetry test results for each

Medicaid patient, in each patient's medical files. It also

requires that the time span between the CMN or prescription date

and the oxygen testing results be no more than thirty days.

19. The Handbook, at page 2-62, requires that prior to a

patient using oxygen equipment, the patient must receive

training from a licensed professional (either a CRT, RN, RCP, or

RT) in how to properly use the equipment. On page 2-64, the

Handbook states that claiming Medicaid reimbursement for the

unsupervised set up of oxygen equipment is not allowed.

20. Respondent properly retained the pulse oximetry test

results for the five patients in question; thus, the first five

counts against Respondent are groundless.

21. One medical file did, however, contain a CMN dated

more than 30 days from the date of the oxygen test results for

the patient.

22. And in one other medical file, Respondent improperly

sought Medicaid reimbursement for two months of oxygen equipment

use when the proper training had not been provided to the

patient.

23. Accordingly, two of the seven counts against

Respondent were proven by clear and convincing evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that pursuant to Florida

Administrative Code Rule 59G-9.070(7)(e), Respondent be fined

$2,000 for two first offense counts of failure to comply with

the Medicaid rules.

DONE AND ENTERED this 7th day of October, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of October, 2011.

ENDNOTES

1 / Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2010).

2 / Respondent's exhibits 7 and 8 were filed after the hearing

without objection, and were marked for identification as

Respondent's Exhibits 7 and 8. In the Transcript, however, they

were incorrectly labeled as "Respondent’s Exhibits 1 and 2."

Respondent's exhibits 1-6 were incorrectly identified in the

Transcript as "Respondent’s Exhibit 3."

3 / The Transcript of this proceeding incorrectly identifies the

Agency's exhibits 1-14 as "Petitioner’s Exhibit 1" and Agency

Exhibit 15 as "Petitioner’s Exhibit 2".

4 / Those patients are: M.A., J.G., M.I., R.M., and S.R.

COPIES FURNISHED :

L. William Porter, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Kristina L. Scheilter

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Emilsa Fernandez Lopez

Jairo's Medical Equipment, Inc.

1823 Ponce De Leon Boulevard

Coral Gables, Florida 33134

Alain Rosello, Qualified Representative

15205 Southwest 13th Terrace

Miami, Florida 33194

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

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

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.