12-001664MPI Agency For Health Care Administration vs. Sharing Facility Group Home Status: Closed Recommended Order on Thursday, February 21, 2013.

Summary: AHCA failed to meet burden of proving that provider engaged in sanctionable conduct by failing to maintain required training documents (12-1841MPI ) and to produce required health assessment forms (12-1664MPI), as alleged.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGEN CY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No s . 12 - 1664MPI

) 12 - 1841MPI

SHARING FACILITY GROUP HOME , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in th ese

consolidated case s pursuant to sections 120.569 and 120.57(1),

Florida Statutes, 1 / before Stuart M. Lerner, a duly - designated

administrative law judge of the Division of Administrative

Hearings (D OAH), on October 12, 2012, by video teleconference at

sites in Port St. Lucie and Tallahassee, Florida.

APPEARANCES

For Petitioner: Rachic A. Wilson, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Curtis Randolph, Esquire

2801 Orange Avenue, Suite B

Fort Pierce, Florida 34947

STATEMENT OF THE ISSUE S

Whether Respondent engaged in s anctionable conduct in

violation of Medicaid laws , as alleged in the April 9, 2012 ,

sanction letter s the Agency f or Health Care Administration

(ACHA) sent to Respondent in the above - styled cases , and, if so,

what sanction(s) should be imposed.

PRELIMINARY STATEMENT

By letter dated April 9 , 2012, ACHA, in connection with its

review of claims that Respondent had submitted to the Florida

Medicaid program from June 1, 2011, through December 1, 2011,

under Provider No. 679849796 as a provider of Developmental

Di sabilities Hom e and Community - Based Medicaid W aiver services ,

advised Respondent of the following :

In accordance with Section 409.913, Florida

Statutes (F.S.) and Rule 59G - 9.070,, Florida

Administrative Code (F.A.C.), the Agency for

Health Care Administrat ion (Agency) shall

apply sanctions for violations of federal

and state laws, including failure to provide

proof of current Infection Control and Zero

Tolerance training for employee DS,

- A fine of $1,000.00 for violation(s) of

7(e) under Rule Section 59 G - 9.070, F.A.C.

* * *

You have the right to request a formal or

informal hearing pursuant to Section

120 . 569, F.S. . . . .

On May 3, 2012, Respondent, through counsel, filed a Petition

for Formal Hearing on the matter. Respond ent's hearing request

was referred to DOAH on May 11 , 2012. The case was docketed as

DOAH Case No. 12 - 1664MPI.

By separate letter dated April 9, 2012, AHCA, in connection

with its review of claims that Respondent had submitted to the

Florida Medicaid prog ram from January 1, 2011, through

November 30, 2011, under Provider No. 142150600 as a prov ider of

assistive care services , advised Respondent of the following:

In accordance with Section 409.913, Florida

Statutes (F.S.) and Rule 59G - 9.070,, Florida

Admi nistrative Code (F.A.C.), the Agency for

Health Care Administration (Agency) shall

apply sanctions for violations for

violations of federal and state laws,

including [f]ailure to maintain a current

Health Assessment for consumers FB, WW, FW &

LS. This let ter shall serve as notice of

the following sanction(s):

- A fine of $4,000.00 for violation(s) of

7(e) under Rule Section 59G - 9.070, F.A.C.

* * *

You have the right to request a formal or

informal hearing pursuant to Section

1 20 . 569, F.S. . . . .

On May 3, 2012, Respondent, through counsel, filed a Petition

for Formal Hearing on the matter. Respondent's hearing request

was referred to DOAH on May 18, 2012. The case was docketed as

DOAH Case No. 12 - 1841MPI.

On July 2, 2012, A HCA filed an unopposed motion to

consolidate DOAH Case Nos. 12 - 1664MPI and 12 - 1841MPI. By Order

issued July 10, 2012, the motion was granted and the cases were

consolidated .

As noted above, the final hearing in the se consolidated

case s was held on Octo ber 12 , 2012. 2 / Two witnesses testified at

the hearing: Victor Rivera (on behalf of AHCA) and Angel Cox

(on behalf of Respondent). In addition to the testimony of

these two witnesses, the following exhibits were offered and

received into evidence : AHCA 's Exhibits A through I and

Re spondent's Exhibits A through D in DOAH Case No. 12 - 1664MPI ;

and AHCA's Exhibits A through I and Respondent's Exhibits A

through F in DOAH Case No. 12 - 1841MPI . The evidentiary record

was left open for purposes of ACHA 's submi tting its Exhibit J

( to be used in both DOAH Case No. 12 - 1664MPI and DOAH Case No.

12 - 1841MPI ) and Respond ent's submitting its Exhibit G in DOAH

Case No. 12 - 1841MPI . The se two exhibit s w ere timely filed with

DOAH on November 5, 2012 , and on October 25, 20 12, respectively .

B y Order issued November 7, 2012, they were received into

evidence, and the evidentiary record was closed.

The proposed recommended order filing deadline was

originally set at 30 days from the date of the filing the

hearing transcript with DOAH. The hearing Transcript

(consisting of one volume) was filed with DOAH on November 14,

2012. Upon the joint request of the parties, the proposed

recommended order filing deadline was thereafter twice extended -

- the final time to February 8, 2012 . On February 8, 2012, both

parties timely filed their Proposed Recommended Orders.

FINDINGS OF FACT

1. AHCA is the state agency charg ed with administer i ng and

overseeing the Medicaid program in Florida. Housed w ithin AHCA

is the Bureau of Medicaid Prog ram Integrity (MPI) . Among MPI's

responsibilities is to conduct audits and investigations to

ensure that the state's Medicaid providers are in compliance

with programmatic requirements.

2. At all times material to the instant case s , Respondent

was enroll ed in the Florida Medicaid program under two separate

provider numbers (Provider No. 679849796, as a provider of

Developmental Disabilities Home and Community - Based Medicaid

W aiver services, and Provider No. 142150600, as a provider of

assistive care servi ces) and subject to the terms of Medicaid

Provider Agreements, 3 / which contained the following provisions ,

among others:

(5) Provider Responsibilities : The

Medicaid provider shall:

* * *

(b) Keep, maintain, and make available in a

systematic and orderly manner all medical

and Medicaid - related records as AHCA

requires for a period of at least five (5)

years.

* * *

(d) Send, at the provider's expense,

legible copies of all Medicaid - related

informatio n to authorized state and federal

employees, including their agents. The

provider shall give state and federal

employees access to all Medicaid patient

records and to other information that cannot

be separate d from Medicaid - related records;

and , in conne ction with Provider No. 679849796, it was also

subject to the terms of a Medicaid Waiver Services Agreement

with the Florida Agency for Persons with Disabilities (APD) , 4 / in

which it had agreed, among other things , to do the following :

To permit persons du ly authorized by APD,

the Agency for Health Care Administration

(AHCA), or representatives of either, to

monitor, audit, inspect, and investigate any

recipient records, payroll and expenditure

records, (including electronic storage

media), papers, document s, facilities, goods

and services of the Provider, which are

relevant to this Agreement . . . .

* * *

2. Upon demand, and at no additional cost

to the APD, AHCA, or their authorized

representatives, the Provider will

facilitate the duplication and transfer of

any records or documents (including

electronic storage media), during the

required retention period . . . .

3. A t all times material to DOAH Case No. 12 - 1664MPI

Respondent, as an enrolled Medicaid provider of Developmen tal

Disabilities Hom e and Community - Based Medicaid W aiver services ,

was bound by the following provisions of the Developmental

Disabilities Waiver Services Coverage and Limitations Handbook

dealing with employee training and recordkeeping requirements ,

whi ch handbook provisions were incorporated by reference (along

with the other provisions of the handbook) in Florida

Administrative Code 59G - 13.083 :

Companion Provider Requirements

* * *

Training Requirements

Proof of training in the areas of

Cardiopul monary Resuscitation (CPR),

HIV/ AIDS and infection control is required

within 30 days of initially providing

companion services. Proof of annual or

required updated training shall be

maintained on file for review. The provider

is r esponsible for all training requirements

outlined in the Core Assurances.

Note: Refer to the Core Assurances in

Appendix A fo r the provider training

require ments. . . .

* * *

Appendix A: Core Assurances for Providers

of Deve lopmental Disabilities Home and

Community - Based Waiver Services Program

* * *

2.1 Required Training

The provider and its employees will ensure

they receive the specific training required

to successfully serve each recipient

i ncluding the following topics:

* * *

H. All direct service providers hired

after 90 days from the effective date of

this rule are required to complete the

Agency for Persons with Disabilities

developed Zero Tolerance Training course

prior to rendering direct care services (as

a pre - service training activity). Said

training may only be completed via APD's

web - based instruction or classroom - led

instruction (using APD's approved classroom

curriculum presented either by APD staff or

an individual who has been trained and

approved by APD to conduct such classroom

trainings). In addition, all direct

service providers shall be required to

complete the APD developed Zero Tolerance

training course at least once every three

years. The provider shall maintain on file

for review, adequate and complete

documentation to verify its participation,

and the participation of its employees, in

the required training sessions.

The documentation for the above listed

training shall, at a minimum, i nclude the

training topic(s), length of training

session, date and location of training,

name and signature of trainer, name and

signature of person(s) in attendance.

Proof of training shall be on file and

available for monitoring and review.

4. At all times material to DOAH Case No. 12 - 1841MPI ,

Respondent, as an enrolled Medicaid provider of assistive care

services, was bound by the following provisions of the Assistive

Care Services Coverage and Limitations Handbook dealing with

health assessments , whi ch handbook provisions were incorporated

by reference (along with the other provisions of the handbook)

in Florida Administrative Code Rule 59G - 4.025 :

Recipients receiving Assistive Care Services

must have a complete assessment at least

annually by a phy sician or other licensed

practitioner of the healing arts (Physician

Assistant, Advanced Registered Nurse

Practitioner, Registered Nurse) or sooner if

a significant change in the recipient's

condition occurs (see below for a definition

of a significant cha nge). An annual

assessment must be completed no more than

one year plus fifteen days after the last

assessment. An assessment triggered by a

significant change must be completed no more

than fifteen days after the significant

change.

- The assessment for a resident of a ALF

or AFCH must be completed by a physician

or other licensed practitioner of the

healing arts (Physician Assistant,

Advanced Registered Nurse Practitioner,

Registered Nurse) acting within the scope

of practice under state law, physician

assistant or advanced registered

practitioner.

- The assessment for a resident of a RTF

must be completed by a physician or

licensed mental health professional. The

assessment must document the need for at

least two of the four ACS components.

The assess ment for ALF residents must be

recorded on the Resident Health

Assessment for Assisted Living

Facilities, AHCA Form 1823.

5. At all times material to both DOAH Case No. 12 - 1664MPI

and DOAH Case No. 12 - 1841MPI , Respondent was also bound by the

following p rovisions of the Florida Medicaid Provider General

Handbook , which were incorporated by reference in Florida

Administrative Code Rule 59G - 5.020 and applied to all enrolled

Medicaid providers , including providers of Developmental

Disabilities Hom e and Commu nity - Based Medicaid W aiver services

and providers of assistive care services :

Record Keeping Requirement

Medicaid requires that the provider retain

all business records as defined in 59G -

1.010(30) F.A.C., medical - related records as

defined in 59G - 1.010 (15 4) F.A.C., and

medical r ecords as defined in 59G - 1.010( 160)

F.A.C. on all services provided to a

Medicaid recipient. [ 5 / ]

Records can be kept on paper, magnetic

material, film, or other media including

electronic storage, except as otherwise

required by la w or Medicaid requirements.

In order to qualify as a basis for

reimbursement, the records must be signed

and dated at the time of service, or

otherwise attested to as appropriate to the

media. Rubber stamped signatures must be

initialed.

The records mus t be accessible, legible and

comprehensible.

* * *

Record Retention

Records must be retained for a period of at

least five years from the date of

service.

* * *

Right to Review Records

Authorized st ate and federal agencies and

their authorized representatives may audit

or examine a provider' s or facility ' s

records. This examination includes all

records that the agency finds necessary to

determine whether Medicaid payment amounts

were or are due. Th is requirement applies

to the provider' s records and records for

which the provider is the custodian. The

provider must give authorized state and

federal agencies and their authorized

representatives access to all Medicaid

patient records and to other inf ormation

that cannot be separated from Medicaid -

related records.

The provider must send, at his expense,

legible copies of all Medicaid - related

information to the authorized state and

federal agencies and their authorized

representatives upon request of A HCA.

At the time of the request, all records must

be provided regardless of the media format

on which the original records are retained

by the provider. All medical records must

be reproduced onto paper copies.

* * *

Incomplet e Records

Providers who are not in compliance with the

Medicaid documentation and record retention

policies described in this chapter may be

subject to administrative sanctions and

recoupment of Medicaid payments.

Medicaid payments for services that la ck

required documentation or appropriate

signatures will be recouped.

Note: See Chapter 5 in this handbook for

information on administrative sanctions and

Medicaid payment recoupment

6. The foregoing contractual and handbook provisions

supplemented sec tion 409.913 (9) , Florida Statutes, which then

provided (as it still does) as follows:

A Medicaid provider shall retain medical,

professional, financial, and business

records pertaining to services and goods

furnished to a Medicaid recipient and billed

to M edicaid for a period of 5 years after

the date of furnishing such services or

goods. The agency may investigate, review,

or analyze such records, which must be made

available during normal business hours.

However, 24 - hour notice must be provided if

patie nt treatment would be disrupted. The

provider is responsible for furnishing to

the agency, and keeping the agency informed

of the location of, the provider's Medicaid -

related records. The authority of the

agency to obtain Medicaid - related records

from a provider is neither curtailed nor

limited during a period of litigation

betwe en the agency and the provider.

7. On or about December 6, 2011, MPI investigators visited

Respondent's facility to review Responde nt's Medicaid - related

records, but left before completing their review.

8. Approximately a month later, MPI sent Respondent a

letter, dated January 5 , 2012, concerning claims that Respondent

had filed under its Provider No. 679849796 as a provider of

Developmental Disabilities Home and Community - Base d Medicaid

W aiver services (January 5 Letter) . The letter read as follows:

The Agency for Health Care Administration

(Agency), Office of Inspector General,

Bureau of Medicaid Program Integrity is in

the process of completing a review of claims

billed to M edicaid during the period J une

0 1, 2011, through Dec ember 01 , 2011 , to

determine whether the claims were billed and

paid in accordance with Medicaid policy.

Pursuant to Sect ion 409.913, Florida

Statutes (F.S. ), this is official notice

that the Agency requ ests the documentation

for services paid by the Florida Medicaid

provider to the above provider number

[ 679849796 ]. The Medicaid - related records

to substantiate billing for the [four]

recipients identified on the enclosed

printout are due within fifteen ( 15)

calendar days of your receipt of this

notification. Please submit the

documentation and the attached Certification

of Completeness of Records to the Agency

within this timeframe, or other mutu ally

agreed upon timeframe.

Correspondence and requested r ecords should

be sent to the following address :

Victor Rivera, Investigator

Agency for Health Care Administration

Medicaid Program Integrity

400 West Robinson Street, Suite S 309

South Tower, Hurston Building

Orlando, Florida 32801

In accordance with Sec tion 409.913, F.S.,

and Rule 59G - 9.070, Florida Administrative

Code (F.A.C.), the Agency shall apply

sanctions for violations of federal and

state laws, including Medicaid policy.

Pursuant to the aforementioned provision s ,

failure to provide all Medicaid - related

records in compliance with this request will

result in the application of sanctions,

which include, but are not limited to,

fines, suspension and termination. The

Medicaid - related records associated with

this review should be retained until [the

r eview is] completed.

If you have any question s , please contact

Victor Rivera, Investigator , at (407)420 -

2524.

The Certification of Completeness of Records form enclosed with

the letter was to be completed by the provider's "official

custodian of records, " and it contained the following

verification and certification:

I hereby verify that I have searched the

Medicaid - related records maintained by the

Provider and have determined that the

attached records consisting of (# of pages)

a re true and correct copi es of the Medicaid -

related records requested by the Agency for

Health Care Administration, Office of the

Inspector General, Bureau of Medicaid

Program Integrity.

I further certify that these are all of the

Medicaid - related records that were made at

or nea r the time that the services were

rendered by, or from information transmitted

by, the Provider ; are kept in the course of

the regularly con ducted business of the

Provider; and that it is the regular

practice of the Provider to keep such

records.

A lso a cc ompanying the letter was a printout provid ing

information concerning "documentation organization . " A mong

other things, it advised that the "employee documentation " that

needed to be submitted included "[c]opies of all required AHCA

training certificates , " and it contained the further advisement

that "[f]ailure to follow the aforementioned guidelines and/or

failure to provide the [sic] ALL of the requested documentation

for ALL staff members who provided services to Medicaid

Recipients during the predetermi ned audit period w [ould] result

in the [a] application of sanctions, " including " fines ."

9. The January 5 L etter and accompanying documents were

received by Respondent on January 9, 2012.

10. Ten days later, MPI sent Respondent a second letter,

dated Jan uary 19, 2012 (January 19 Letter) . This letter

concerned claims that Respondent had filed un der its Provider

No. 142150600 as a prov ider of assistive care services , and it

provided as follows:

The Agency for Health Care Administration

(Agency), Office of Inspector General,

Bureau of Medicaid Program Integrity is in

the process of completing a review of claims

billed to Medicaid during the period

January 1, 2011, through November 30, 2011 ,

to determine whether the claims were billed

and paid in accordance with Medicaid policy.

Pursuant to Section 409.913, Florida

Statutes (F.S.), this is official notice

that the Agency requests the documentation

for services paid by the Florida Medicaid

provider to the above provider number

[143150600]. The Medicaid - relat ed records

to substantiate billing for the [four]

recipients identified on the enclosed

printout are due within fifteen (15)

calendar days of your receipt of this

notification. Please submit copies of the

Medicaid - related records and the attached

Certific ation of Completeness of Records to

the Agency within this timeframe, or other

mutually agreed upon timeframe.

Correspondence and requested records should

be sent to the following address :

Victor Rivera, Investigator

Agency for Health Care Administration

Medicaid Program Integrity

400 West Robinson Street, Suite 309

South Tower, Hurston Building

Orlando, Florida 32801

In accordance with Section 409.913, F.S.,

and Rule 59G - 9.070, Florida Administrative

Code (F.A.C.), the Agency shall apply

sanctions for violations of federal and

state laws, including Medicaid policy.

Pursuant to the aforementioned provisions,

failure to provide all Medicaid - related

records in compliance with this request will

result in the application of sanctions,

which include, but a re not limited to,

fines, suspension and termination. The

Medicaid - related records associated with

this review should be retained until [the

review is] completed.

If you have any questions, please contact

Victor Rivera, Investigator, at (407)420 -

2524.

A t the bottom of the "enclosed printout" referenced in the

letter was the following cautionary advisement:

Please refer to your Assistive Care Services

handbook, July 2009, for information on the

required documentation for recipient files.

T he Certificatio n of Completeness of Records form enclosed with

the letter was identical to the Certification of Completeness of

Records form that had accompan ied the January 5 L etter.

11. The January 19 L etter and accompanying documents were

received by Respondent on Ja nuary 21, 2012.

12. Respondent, through its owner/administrator Angel Cox,

responded to the records requests made in the January 5 and

January 19 L etters by providing MPI with copies of numerous

documents, along with two completed, signed, and dated

Certi fications of Completeness of Records (one for each records

request), o n January 24, 2012 . 6 / Ms. Cox supplemented this

response by faxing additional copies to MPI on February 7, 2012 .

13. Victor Rivera, the MPI investigator to whom Respondent

had been dir ected to send its responses to MPI's January 5,

2012, and January 19, 2012, records requests, reviewed the

documentation that Ms. Cox had submitted and determined that the

following Medicaid - related records that Respondent had been

requested to produce in the January 5 and January 19 Letters

were missing (hereinafter referred to collectively as the

" Further Required Documentation") : written proof that D. S., an

employee of Respondent's who had helped deliver services for

which Respondent had billed the Flo rida Medicaid program from

June 1, 2011, through December 1, 2011, under its Developmental

Disabilities Home and Community - Based Medicaid W aiver services

provider number, had completed the infection control and zero

tolerance training required by the Devel opmental Disabilities

Waiver Services Coverage an d Limitations Handbook; and the

annual health assessment s required by the Assistive Care

Services Coverage and Limitations Handbook for the four

recipients of the services for which Respondent had billed the

Florida Medicaid program from January 1, 2011, through

November 30, 2011 , under its as sistive care services provider

n umber.

14. At all times material to the instant cases, Respondent

had the Further Required Documentation in its possession, 7 /

however, Ms. Cox had inadvertently failed to include the se

documents in the submissions she made (on behalf of Respondent)

in response to MPI's January 5 and January 19 L etters.

15. Ms. Cox first learned that the Further Required

Documentation was missing during a telephone conversation she

had with Mr. Rivera at the end of March 2012 , when he advised

her of the omission and told her that she needed to get these

documents to him "as soon as possible." 8 /

16. O n April 1 or 2, 2012, n o more than three or four days

a fter this telephone conversation, Ms. Cox provided Mr. Rivera ,

by fax, with copies of the following: a certificate of

completion issued by APD to employee D. S. on April 28, 201 0,

for "Zero Tolerance Training " ; a certificate of completion

issued by All Me tro Health Care to employee D. S. for "Infection

Control Guidelines" training completed on February 12, 2011 ; and

a completed March 2011 annual health assessment recorded on AHCA

Form 1823 (2011 Health Assessment Form) for each of the four

recipients ident ified in the printout accompany ing the January

19 Letter. Respondent also had in its possession the previous

year's completed AHCA Form 1823 (2010 Health Assessment Form)

for each of these recipients, but Ms. Cox did not fax copies of

these forms 9 / to Mr. Rivera because she reasonably believed that

Mr. Rive ra had asked only for the 2011 Health Assessment

F orms. 10 /

17. MPI tries to "work with the [Medicaid] providers." If

a provider is asked by MPI to provide , "as soon as possible , " a

specified document or documents previously requested but not

produced and the provider, in response to such a follow - up

request, produces the document (s) in question within a matter of

days, it is MPI 's practice to not impose any sanctions on the

provider and , instead , to "m ove on to the next case." 11 / In the

instant cases, however, in a n unexplained departure from that

practice, MPI chose to issue the April 9, 2012, sanction letters

set out above . It is these sanction letters that frame the

issues to be resolved in these ca ses.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

19. ACHA is seeking to impose sanctions on Respondent in

the form of fine s of $1,000.00 (in DOAH Case No. 12 - 1664MPI) and

$4,000.00 (in DOAH Case No. 12 - 1841MPI) pursuant to s ection

409.913(15)( e ) and (16) (c) , Florida Statutes, and Florida

Administrative Code 59G - 9.070(7)( e ), which at all times material

to the instant case s have provide d , in pertinent part, as

f ollows:

§ 409.913(15)(e ), Fl a. Stat.

The agency shall seek a remedy provided by

law, including, but not limited to, any

remedy provided in subsections (13 ) and (16)

and s. 812.035, if:

The provider is not in compliance with

provisions of Medicaid provi der publications

that have been adopted by reference as rules

in the Florida Administrative Code; with

provisions of state or federal laws, rules,

or regulations; with provisions of the

provider agreement between the agency and

the provider; . . . .

§ 409 .913(16)(c), Fla. Stat.

The agency shall impose any of the following

sanctions or disincentives on a provider or

a person for any of the acts described in

subsection (15):

Imposition of a fine of up to $ 5,000 for

each violation. Each day that an ongoi ng

violation continues, such as refusing to

furnish Medicaid - related records or refusing

access to records, is considered, for the

purposes of this section, to be a separate

violation. . . .[ 12 / ]

Florida Administrat ive Code 59G - 9.070(7)(e )

SANCTIONS: In addition to the recoupment of

the overpayment, if any, the Agency will

impose sanctions as outlined in this

subsection. Except when the Secretary of

the Agency determines not to impose a

sanction, pursuant to Section

409.913(16)(j), F.S., [ 13 / ] sanctions sh all be

impos ed as follows:

For failure to comply with the provisions of

the Medica id laws: For a first offense,

$ 1,000 fine per claim found to be in

violation. For a second offense, $ 2,500

fine per claim found to be in violation.

For a third or sub sequ ent offense, $ 5,000

fine per claim found to be in violation.

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

Because they are penal in nature, these statutory and rule

provisions must be strictly construed , with any ambiguities

being resolved in favor of Respondent. See Dyer v. Dep't of

Ins. , 585 So. 2d 1009 (Fla. 1st DCA 1991 ) ( court " [a]ppl[ied] the

principle of statutory construction that penal statutes must be

strictly construed in favor of the party to be penalized " ).

20. In order to fine a provider for a violation of

"Medicaid laws," ACHA must establish the provider's guilt of the

violation by clear and convincing evidence. See Dep't of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996)("[A]n administrative fine deprives the person fined of

subs tantial rights in property. Administrative fines . . . are

generally punitive in nature. . . . Because the imposition of

administrative fines . . . [is] penal in nature and implicate[s]

significant property rights, the extension of the clear and

convinci ng evidence standard to justify the imposition of such a

fine is warranted."); Diaz de la Portilla v. Fla. Elect. Comm'n ,

857 So. 2d 913, 917 (Fla. 3d DCA 2003)("We agree with the

administrative law judge that the standard of proof in a case

seeking fines under chapter 106 is clear and convincing

evidence."); and § 120.57(1)(j) ("Findings of fact shall be

based on a preponderance of the evidence, except in penal or

licensure disciplinary proceedings . . . .").

21. Clear and convincing evidence is an "int ermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 6 45 So. 2d 398, 404 (Fla. 1994)(quoting with approval

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) ;

see also In re Adoption of Baby E. A. W. , 658 So. 2d 961, 967

(Fla. 1995)("The evidence [in order to be clear and convincing]

must be sufficient to convince the trier of fact without

hesitancy."). "Althou gh this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

22. In determining whether AHCA has met its burden of

proof, it is necessary to evaluate its evidentiary presentation

in light of the specific allegations of wrongdoing made in the

charging instrument provided to the alleged "Medicaid laws"

violator . Due process prohibits an agency from taking penal

action based on matters (either factual or legal) not

specifically alleged, unless those matters have been tried by

consent. See Trevisani v. Dep't of Health , 908 So. 2d 1108,

1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for

an offense not charged in the complaint.") ; Marcelin v. Dep't of

Bus. & Prof'l Reg. , 753 So. 2d 745, 746 - 747 (Fla. 3d DCA

2000)("Marcelin first contends that the administrative law judge

found that he had committed three violations which were not

alle ged in the administrative complaint. This point is well

taken. . . . We strike these violations because they are

outside the administrativ e complaint.") ; and Delk v. Dep't of

Prof'l Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he

conduct proved must legally fall within the statute or rule

claimed [in the administrative complaint] to have been

violated.").

23. The charging instrument s in the instant case, AHCA's

April 9, 2012, sanction letter s to Respondent , allege (in DOAH

Case No. 12 - 1664MPI) that Respondent "fail[ed] to provide

[required] proof of current Infection Control and Zero Tolerance

training for employee D [.] S [.] " and (in DOAH Case No. 12 -

1841MPI) that Respondent "[f]ail[ed] to maintain a current

Health Assessment" for the four recipient s referenced in the

January 19 Letter.

24. With respect to the latter allegation , the record

evidence affirmatively establishes that, while Respondent may

not have produced the "Health Assessments" in question within

the "15 day period" specified in the J anuary 19 Letter, it did

have in its possession and "maintain" these "Health Assessments"

at all times material to DOAH Case No. 12 - 1841MPI. 14 /

Accordingly, given AHCA's failure to meet its burden of proving

the allegation made in the charging instrument i n that case,

that allegation must be dismissed.

25. With respect to the "failure to provide" allegation

made in DOAH Case No. 12 - 1664MPI, the record evidence clearly

and convincingly establishes that Respondent did pro vide to MPI

the "Infection Control an d Zero Tolerance training" documents

referenced in the sanction letter, just not "within fifteen (15)

calendar days of [Respondent's] receipt" of the January 5

Letter , which was the deadline set forth in the letter for

Respondent's responding to the letter 's production request .

Although Respondent did not meet this deadline, the record

evidence establishes that at no time during this 15 - day response

period, or thereafter, did Respondent knowing ly or intentionally

refuse (as opposed to merely inadvertently fail) to provide MPI

with these documents (which at all material times existed and

were maint ained by Respondent) , and it further establishes that,

o nce Respondent was advised by MPI that these particular

documents were not, but should have been, included in

Respondent's initial su bmissions in response to the general "all

Medicaid records" production request made in the January 5

Letter 15 / and that Respondent needed to provide the se missing

documents to MPI "as soon as possible , " it was only a matter of

days before Respondent supplemented its prior submissions to MPI

with the required documents . It h as been the practice of AHCA

(through MPI) , when faced with similar provider behavior, to

find no sanctionable conduct under section 409.913(15)(e) and

(16)(c) a nd Florida Administrative Code 59G - 9.070(7)(e) . AHCA

has not offered, nor does the undersigned find , any

justification for deviating from this agency practice in

Respondent's case. Accordingly, consistent with this practice,

the "failure to provide" alle gation made in DOAH Case No. 12 -

1664MPI should be dismissed. See Pagan v. Sarasota Cnty. Pub.

Hosp. Bd. , 884 So. 2d 257, 266 (Fla. 2d DCA 2004)(Canady, J.,

concurring specially)(" Denying precedential effect to the

decision of this case in future cases pre senting similar facts

and issues would, however, be inconsistent with the fundamental

principle that like cases should be treated alike. "); Nordheim

v. Dep't of Envtl. Prot. , 719 So. 2 d 1212, 1214 (Fla. 3d DCA

1998) ("PERC abused its discretion in failing t o consider the

rule in Jackson . Refusing to do so was an exercise of agency

discretion that was 'inconsistent with officially stated agency

po licy or a prior agency practice' not explained by the

agency. "); Gessler v. Dep't of Bus. & Prof'l Reg. , 627 So. 2d

501, 504 (Fla. 4th DCA 1993)("The concept of stare decisis , by

treating like cases alike and following decisions rendered

previously involving similar circumstances, is a core principle

of our system of justice. . . . While it is apparent that

agencies , with their significant policy - making roles, may not be

bound to follow prior decisions to the extent that the courts

are bound by precedent, it is nevertheless apparent the

legislature intends there be a principle of administrative stare

decisis in Flori da."); Martin Mem'l Hosp. Ass'n v. Dep't of HRS ,

584 So. 2d 39, 40 (Fla. 4th DCA 1991)("[A]gency action which

yields inconsistent results based upon similar facts, without

reasonable explanation, is improper.") ; Ag. f or Health Care

Admin. v. Beth Shalom Co rp. , Case No. 2011004055, 2012 Fla. Div.

Adm. Hear. LEXIS 84 **4 - 7 (ACHA Feb. 13, 2012)("[W]hile

Petitioner is correct in stating that '[t]he determination of

each case must be done by applying the facts of that case to the

statutory definition of the clas sification of a deficiency as

found in section 408.813(2)(a),' past agency precedent must also

guide that determination. When an agency departs from its prior

precedent, it must give an explanation for the departure. When

asked why the Agency departed fr om its precedent of citing PEG

violations as Class II violations, Petitioner's witness simply

answered 'lack of leadership.' The Agency's witness gave no

further explanation for the departure from prior Agency

precedent. Thus, the Agency's classification of the violations

alleged in this case as Class I violations could not withstand

judicial review.") ; and § 120.68(7)(e)3 ("The court shall remand

a case to the agency for further proceedings consistent with the

court's decision or set aside agency action, as app ropriate,

when it finds that: [t] he agency's exerci se of discretion was:

[i] nconsistent with officially stated agency policy or a prior

agency practice, if deviation therefrom is not explained by the

agency.").

RECOMMENDATION

Based upon the forego ing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Agency for Health Care Administration

dismiss the allegations made against Respondent in the April 9,

2012, sanction letters issued in these case s and it not impose

any sanction s against Respondent for the conduct alleged in

these letters.

DONE AND ENTERED this 2 1st day of February , 201 3 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 2 1st day of February, 2013 .

ENDNOTES

1 / Unless otherwise noted, all references in this Recommended

Ord er to Florida Statutes are to that version of Florida

Statutes in effect at the time of the occurrence of the

particular event or action being discussed.

2 / The hearing was originally scheduled to commence in July

2012, but was continued/postponed four times.

3 / "The statutory framework applicable to Florida's Medicaid

program conditions the receipt of funds from the AHCA on the

existence of a Provider Agreement." Diaz v. State, 65 So. 3d

78, 80 (Fla. 3d DCA 2011) .

4 / As was explained in Diaz , 65 So . 3d at 79 - 80:

The AHCA is the Medicaid agent for Florida

provided by federal law. However, the AHCA

has delegated the duty to perform daily

operations to the APD. In essence, the APD

ensures that waiver program providers comply

with applicable rules an d regulations, while

the AHCA pays qualified providers for

services rendered to program recipients. A

qualified provider must possess a facilities

license and enter into a Provider Agreement

with the APD. Quali fied providers receive a

Medicaid number ena bling the rec eipt of

payment from the AHCA.

5 / At all times material to both DOAH Case No. 12 - 1664MPI and

DOAH Case No. 12 - 1841MPI, Florida Administrative Code Rule 59G -

1.010(30), (154), and (160) provided as follows:

The following definitions are appli cable to

all sections of Chapter 59G, F.A.C., unless

specifically stated otherwise in one (1) of

those sections. These definitions do not

apply to any Agency for Health Care

Administration (Agency), Medicaid program

rules other than those in Chapter 59G,

F.A.C.:

(30) "Business records" are those documents

related to the administrative or commercial

activities of a provider, as contrasted with

medical or professional activities.

Business records made available to Medicaid

must be dated and legible. Busin ess records

include, as applicable, admission, accident,

appointment, assignment, billing, contract,

eligibility, financial, insurance, legal,

medical release, patient activity, peer

review, personnel, procurement,

registration, signature authorization, ta x,

third party correspondence, utilization

review documents, all administrative or

commercial records that are customarily

prepared or acquired and are customarily

retained by the provider, and administrative

or commercial records that are required by

stat ute or rule to be prepared or acquired

and retained by the provider. Records may

be on paper, magnetic material, film or

other media. Also see "Medical records" and

"Medicaid related records."

(154) "Medicaid - related records" means

records that relate to the provider's

business or profession and to a Medicaid

recipient. Medicaid - related records include

records related to non - Medicaid customers,

clients, or patients, to the extent that the

documentation is shown by the department to

be necessary to dete rmine a provider's

entitlement to payments under the Medicaid

program. Also see "Business records" and

"Medical records."

(160) "Medical records" means those

documents corresponding to medical or allied

care, goods, or services furnished in any

place of service. The records may be on

paper, magnetic material, film, or other

media. In order to qualify as a basis for

reimbursement, the medical records must be

dated, signed or otherwise attested to, as

appropriate to the media, and legible.

(a) Medical records will include, as

applicable:

1. Date of service on each visit, and time

spent with patient on each visit;

2. Place of service;

3. Patient's name and date of birth;

4. Caregiver's signature (not stamp or

facsimile), and name and title of per son

performing the service. When the caregiver

is the billing practitioner, the name and

title must appear on the claim form;

5. Referring physician;

6. Chief complaint on or purpose of each

visit;

7. Medical history;

8. Findings on examination;

9. Medications administered, prescribed or

dispensed;

10. Description of treatment, when

applicable;

11. Daily progress notes, physician's

orders, prescriptions, and recommendations

for additional treatments or consultations;

12. Laboratory reports , X - ray and other

image records, and other tests and results;

13. Documentation related to medical

equipment and supplies ordered or

prescribed; and

14. All other records that are customarily

prepared or acquired, and are customarily

retained by the pr ovider and all records

that are required by statute or rule to be

prepared or acquired and retained by the

provider.

(b) Also see "Business records" and

"Medicaid - related records."

6 / These items were mailed by Ms. Cox on January 23, 2012, and

received by MPI the following day.

7 / In fact, this documentation could have been made available to

MPI investigators during their December 6, 2011, visit to

Respondent's facility had the investigators not decided to cut

the visit short.

8 / Mr. Rivera had not previously communicated with Ms. Cox,

either verbally or in writing, regarding the matter.

9 / The 2010 Health Assessment Forms (which were not faxed to Mr.

Rivera) covered that portion of the January 1, 2011, through

November 30, 2011, billing period ref erenced in the January 19

Letter not covered by the 2011 Health Assessment Forms (which

were faxed to Mr. Rivera).

10 / The 2010 Health Assessment Forms were offered and received

into evidence as Respondent's Exhibit G in DOAH Case No. 12 -

1841MPI.

11 / M r. Rivera so testified -- credibly, in the opinion of the

undersigned -- as reflected on page 58 of the hearing Transcript.

12 / The "left flush" language at the end of section 409.913(16)

makes the imposition of such a fine discretionary. It provides

as foll ows:

The Secretary of Health Care Administration

may make a determination that imposition of

a sanction or disincentive is not in the

best interest of the Medicaid program, in

which case a sanction or dis incentive shall

not be imposed.

13 / As noted above , it is the "left flush" language at the end

of section 409.913(16) , not section 409.913(16)( j ), which gives

the Secretary such discretion.

14 / Unlike the sanction letter in DOAH Case No. 12 - 1664MPI, the

sanction letter in DOAH Case No. 12 - 1841MPI alleg es a "[f]ailure

to maintain ," not a "failure to provide ."

15 / Th e request made by MPI in its letter placed the burden on

Respondent to determine exactly what specific documents in its

possession it needed to pro duce to comply with the request.

COPIES FURNISHED:

Rachic A. Wilson, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Curtis Randolph, Esquire

2801 Orange Avenue, Suite B

Fort Pierce, Flori da 34947

Elizabeth Dudek, Secretary

Agency for Health Care Administration

Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Richard J. Shoop , Agency Clerk

Agency for Health Care Administration

Mail Stop 3

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 d ate 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.