13-000839MPI Agency For Health Care Administration vs. Amer-Cu Home Care, Inc. Status: Closed Recommended Order on Friday, September 27, 2013.

Summary: Respondent overpaid $9713 for failing to reduce by one half its reimbursement claim for service to recipient at same residence as another recipient receiving service on same date. $1942 fine and $254 costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 13 - 0839MPI

AMER - CU HOME CARE, INC.,

Respondent.

/

RECOMMENDED ORDER

Robert E. Me ale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing on

August 1 , 2013, by videoconference in Tallahassee and Miami,

Florida.

APPEARANCES

For Petitioner: Jeffries H. Duvall , Esquire

Assista nt General Counsel

Agency for Healthcare Administration

Fort Knox Building 3, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Enrique F. Vazquezbello, Jr.

Qualified Representative

Suite 210

3271 Nor thwest Seventh Street

Miami, Florida 33125

STATEMENT OF THE ISSUE S

The issues are w hether Petitioner has overpaid Respondent

$9713.34 in reim bursed claims for home health visit services.

If so, additional issues are whether Petitioner is entitled to

impose a fine of $1942.67 and assess costs of $254.70 .

PRELIMINARY STATEMENT

By Final Audit Report dated January 2, 2013 (FAR),

Petitioner advised Respondent that, after an audit of claims for

Medicaid reimbursement from July 1, 2007, through March 31,

2011, Petitioner had determined that it had overpaid Respondent

$9713.34. The FAR advises that Petitioner is imposing a fine of

$1942.67, pursuant t o sections 409.913(15) - (17), Florida

Statutes, and Florida Administrative Code Rule 59G - 9.070, and

costs of $254.70, pursuant to section 409.913(23), Florida

Statutes.

The FAR explains why the challenged claims do not meet

Medicaid requirements. The FAR cites the Florida Medicaid Home

Health Services Coverage and Limitations Handbook dated October

2003, page 3 - 2, for the limitation that home health visits to

multiple recipients with individual residences at the same

address are reimbursed at the establis hed rate for the first

recipien t and 50 percent of the established rate for additional

recipients. The FAR cites an identical limitations in the

Flor ida Medicaid Home Health Services Coverage and Limitations

Handbook dated July 2007 and July 2008, both at page 3 - 2.

Respondent timely requested a hearing.

At the hearing, Petitioner called three witnes ses and

offered into evidence 11 exhibits: Petitioner Exh ib its 1 - 11 .

Respondent called two witness es and offere d into evide nce one

exhibit: Respondent Exhi bit 1 . All exhibits were admitted.

The court reporter filed the transcript on August 27 , 2013.

Petitioner filed its proposed recommended order on September 26,

2013.

FINDING S OF FACT

1. Respondent has been a Medicaid provider since 2005 , and

the record discloses no prior violations of Medicaid law.

Respondent provides home health visit services to Medicaid

recipients in their homes, which may be group homes or private

homes. The five recipients at issue in this case reside in

private homes.

2. As id entified in the FAR, t he recipients are M. O. , who

is Recipient 1; A. del. P., who is Recipient 2; J. R., who is

Recipient 3 ; N. M. de O., who is Recip ient 4; and B. C. C. , who

is Recipient 5. ( The Preliminary Audit Report dated November 8,

2011 (PAR) , id entifies these recipients by the numbers,

respectively , of 1, 4, 7, 9, and 10, but t his recommended order

will refer to the recipients by the numbers assigned to them in

the FAR . )

3. Resp ondent stipulates that the Florida Medicaid Home

Health Services Cov erage and Limitations Handbooks applicable to

the years in question authorize a full reimbursement for home

health visit services provided to a single recipient at a

specific address and a reduced reimbursement of one - half for

home health visit services pr ovided on the same date to

subsequent recipients at the same address. This provision,

which has been in Medicaid handbooks for about ten years, occurs

on page 3 - 2 in Petitioner Exhibit 5.

4. As for the dates of service at issue in this case,

Respondent concedes that , at the time of receiving home health

visit services, Recipients 1 - 4 each resided with another

recipient, who also received home health visit services from

Respondent on the same dates. Respondent concedes that it has

received full reimburs ement s for the services that it provided

to these coresident recipients . Respondent contends that it is

entitled to full reimbursements for the services that it

provided to R ecipients 1 - 4 because Petitioner ' s Medicaid billing

program did not allow Respond ent to enter the necessary

information to halve these reimbursements.

5. Respondent contends that Recipient 5 did not reside

with another recipient receiving home health visit services from

Respondent for any date of service occurring from May 6, 2009,

th rough September 1, 2009. Alternatively, Respondent would

contend that, if this contention failed to prevail, it is

entitled to a full reimbursement for Recipient 5 on the same

ground as it is for Recipients 1 - 4.

6. There is no merit to Respondent ' s con tention as to

Recipients 1 - 4. First, reimbursement rates are set by the home

health services coverage and limitations handbooks, not a

Medicaid billing program maintained by Petitioner for use by

providers. Second, Petitioner has proved that Respondent c ould

have entered on its submitted claims halved reimbursement

amount s for Recipients 1 - 4.

7. Third, Petitioner gave Respondent a chance to correct

its claims for Recipients 1 - 4 without any penalty. The Amended

Preliminary Audit Report dated October 31 , 2012 (APAR) , which

reduced the claimed overpayment to $9713.34 , provides : " If the

identified overpayment is paid within 15 days of receipt of this

letter, amnesty will be granted in regard to the application of

sanctions and the assessment of costs for this audit. "

8. A s one of Petitioner ' s witnesses testified, a ll

Respondent had to do within 15 days was to contact Petitioner

and arrange for a repayment schedule. But Respondent did not

avail itself of this opportunity , clinging instead to its

argumen t that some flaw in the online billing program entitles

Respondent to full reimbursements for a ll coresidents to whom it

provided home health visit services . Assuming, strictly for the

sake of discussion, that something was wrong with the online

billing p rogram, the amnesty offer constitutes the repair of the

program and the restoration of Respondent to the point of

submission (or resubmission) of the subject reimbursement

claims. By not accepting the offer, Respondent essentially

refuses to use the repai red program and unreasonably repeats its

demand that it be relieved from a longstanding limitation on

Medicaid reimbursement of home health visit services.

9 . As for Recipient 5, the dispute is whether this

recipient coresided with another recipient rec eiving home health

visit services from Respondent. The PAR found a problem with

four recipients, including Recipient 5, but, after examining

documentation provided by Respondent, Petitioner drop ped the

overpayment claims arising out of the other three rec ipients,

but not Recipient 5.

10 . Relying on information contained in the Florida

Medicaid database, which is known as FLMMIS, Petitioner

determined that Recipient 5 coreside d with another recipient.

Although each recipient is required to provide updat ed

residential information when appropriate, it is possible that

Recipient 5 may not have timely done so. For its part, though,

Respondent did not have documentation showing where the home

health visit services were provided. Respondent instead relied

on Recipient 5 ' s Plan of Care, which is typically completed by

the physician and presumably focuses more on the treatment plan

than the recipient ' s place of residence. The record does not

reveal the date of the Plan of Care on which Respo ndent relied,

nor h ow often these plans are updated.

11. Petitioner ' s staff tried to verify the address in

Recipient 5 ' s Plan of Care, but were unable to do so. On these

facts, the address es on FLMMIS control . It is unclear what role

a recipient ' s address plays in a pla n of care, but a recipient ' s

address in FLMMIS is crucial because it is used to establish and

maintain the recipient ' s Medicaid eligibility. A service log

contemporaneously documenting the location that a provider

visited to provide home health visit serv ices probably would

have sufficed to overcome the evidentiary force of the FLMMIS

and FAR, which, as noted below, is evidence of the overpayment,

but a mere plan of care cannot overcome this evidence.

12 . Having determined that Petitioner has proved that

Recipient 5 coresided with another recipient of home health

visit services from Respondent on the dates in question,

Respondent ' s alternative argument, which is the billin g argument

that it used for Re cipients 1 - 4, is rejected on the same

grounds.

13 . L astly, Petitioner has proved all factual grounds for

imposing a fine of $ 1942.67 and assessing investigative costs of

$254.70 .

CONCLUSIONS OF LAW

14 . DOAH has jurisdiction over the subject matter.

§§ 120.569, 120.57(1), and 409.913(31), Fla. Stat.

15 . Providers presenting reimbursement claims are required

to ensure that each claim is " true and accurate and . . . is for

goods and services that . . . [a]re provided in accord with

applicable provisions of all Medicaid rules, regulations,

handbooks, and policies and in accordance with federal, state,

and local law. " § 409.913(7)(b) and (e).

16. Petitioner is required to " require repayment for

inappropriate, medically unnecessary, or excessive goods or

services from the person furnishing them, the person under whose

supervision they were furnished, or the person causing them to

be furnished. " § 409.913(11). In discharging this duty,

Petitioner is required to conduct audits of Medicaid providers

to determine if it has overpaid reimbursement claims,

§ 409 .913(2), and to prepare and issue audit reports documenting

overpayments. § 409.913(21).

17. The burden of proof is on Petitioner to prove the

material allegations by a preponderance of the evidence.

Southpointe Pharmacy v. Dep ' t of Health & Rehab. Se rvs. , 596 So.

2d 106, 109 (Fla. 1st DCA 1992). The sole exception regarding

the standard of proof is that clear and convincing evidence is

required for fines. Dep ' t of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932, 935 (Fla. 1996).

18. However, the audit report, if accompanied by

supporting work papers, is " evidence of the overpayment. "

§ 409.913(22). Although the statute could be clearer, section

409.913(22) provides that the audit report and work papers

establish the determined total overpaym ent, absent contrary

evidence.

19. Petitioner has proved that it overpaid Respondent a

total of $9713.34. This overpayment has been determined without

regard to Petitioner Exhibit 11, to which Respondent ' s objection

is now sustained, post - hearing, unde r the authority of

§ 409.913(22).

20. Section 409.913(15) provides:

(15) 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:

* * *

(e) The provider is not in compliance

with provisions of Medicaid provider

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 provision s of the provider

agreement between the agency and the

provider; or with certifications found on

claim forms or on transmittal forms for

electronically submitted claims that are

submitted by the provider or authorized

representative, as such provisions app ly to

the Medicaid program[.]

21 . Section 409.913(16)(c) authorizes Petitioner to impose

a fine of up to $5000 per violation. Florida Administrative

Code Rule 59G - 9.070(7)(e) authorizes a fine of up to $1000 per

violation for a first offense. Petitione r has proved the

existence of several violat ions in this case, but

Rule 59G - 9.070(4)(a) caps the fine at 20 percent of the

overpayments. Thus, the fine is $1942.67.

22 . Petitioner is authorized to assess costs because it

has prevailed in this case. § 4 09.913(23). The costs total

$254.70.

RECOMMENDATION

I t is RECOMMENDED that the Agency for Health Care

Administration enter a final order finding a total overpayment

of $9713.34, imposing a fine of $1942.67, and assessing costs of

$254.70.

DONE AND EN TERED this 27th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of September, 2013 .

COPIES FURNISHED :

Enrique F. Vazquezbello

Amer - Cu Home Care, Inc.

Suite 210

3271 Northwest 7th Street

Mia mi, Florida 33125

Jeffries H. Duvall, Esquire

Agency for Health Care Administration

Fort Knox Building 3, Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Mail Stop 3

2 727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

Mail Stop 1

2 727 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 w ith the agency that

will issue the Final Order in this case.