13-004642MPI Agency For Health Care Administration vs. Alternative Care Staffing, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, August 18, 2015.

Summary: Agency proved provider didn't document experience requirements or appropriateness of services. Agency estopped from disallowing claims for companion services outside licensed home when services included in APD approved plans.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 13 - 4642MPI

ALTERNATIVE CARE

STAFFING, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Admi nistrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings conducted the final hearing

in this case on February 19 and 20, 2014, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Karen A. Brodeen, Esquire

Office of the Att orney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Frank P. Rainer, Esquire

Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32301 - 1804

STATEMENT OF THE ISSUE S

1. Are the Medic aid payment claims of Respondent

Alternative Care Staffing, Inc. (Alternative), for companion care

services authorized by support plans and waiver support

coordinators and provided in the community to recipients residing

in group homes reimbursable service s under the Home and

Community - Based Wavier (HCB Waiver) program ?

2. Are Alternative Ó s Medicaid s ervice claims for allegedly

unauthorized activities reimbursable under the HCB W aiver

program, or may the Agency for Health Care Administration

( Agency ) rec oup payment for the claims?

3. Did Alternative receive payment for services provided by

ineligible staff?

4. Are Alternative Ó s allegedly overlapping Medicaid

s ervice claims actually overlapping ?

5. Did the Agency meet : (1) it s burden of proof for

impos ing fines , and (2) its statutory obligations before

imposing fines ?

6. W hether or how much , due to mitigating factors, the

Agency can fine Alternative for the items identified as

overpayments in Agency Ó s Exhibit 6, Amended Final Audit Report

dated May 25, 2011 ; subsequently , modified in Agency Ó s

E xhibit 7, Current Overpayment Calculations and Agency Work

Papers ; and finally modified during the hearing as shown in

Exhibit A to the proposed recommended orders and this

R ecommended O rder .

PRELIMINARY STATEMENT

The case was originally filed on July 6, 2011 , and assigned

DOAH Case N o. 11 - 3343 MPI . The parties filed an a greed m otion to

a bate p roceedings on August 18, 2011 , to pursue settlement. The

motion was granted. On November 26, 2013, the Agency moved to

re open the case . The motion was granted. The matter was

reopened as DOAH Case No. 13 - 4642 MPI and scheduled for hearing on

February 19 and 20, 2014 . The hearing was conducted as noticed.

The Agency called Kristen Koelle and Robi Olmstead as

witnesses . The Agency Exhibits 1 through 13 were accepted into

evidence.

Alternative offered the testimony of Joyce Rowe and

Ron Rowe. Alternative Ó s E xhibits A through D and G through J

were accepted into evidence. Alternative Ó s Exhibit K was

admitted as a substitute for Alternative Ó s Exhibits E and F.

Transcript , Volumes I through III , were filed on March 10,

2014. On April 2, 2014, Alternative filed an Unopposed Motion

for Enlargement of Time to File the Proposed Recommended Order s .

The motion was granted. The p arties requested and were granted

additional time for filing proposed recommended orders in excess

of 40 pages .

The parties timely filed their proposed orders. The

proposed orders have been considered in the preparation of this

Recommended Order. During the hearing and in the course of this

matter , and in the preceding DOAH Case No. 11 - 3343 MPI , the

parties resolved many of the disputed claims for recoupment.

This R ecommended O rder addresses only the remaining disputed

claims. They are identified in the jointly prepared spreadsheet

attached to each party Ó s proposed recommended order .

The audit period for this matter is January 1, 2008, through

June 30, 2009. During that time period , different versions of

statutes, rules, and handbooks were in effect. Fo r the most

part , the relevant provisions of various versions do not

materially differ. All citations are to the 2008 version of

statutes, rules, and handbooks, unless otherwise indicated .

FINDING S OF FACT

Background

1. The Medicaid program is a federal a nd state partnership

that pays the costs of providing health care and related services

to qualified individuals, including people with developmental

disabilities . The Agency is the single state agency authorized

to make payments for medical assistance and related services

under Florida Ó s Medicaid program. § 409.902, Fla. Stat. (2013 ) .

2. The Legislature charged the Agency with overseeing the

activities of Medicaid recipients and their providers and with

recouping overpayments. § § 409.913 and 409.913(1) ( e) , Fla. Stat.

Florida law defines an Ð overpayment Ñ as Ð 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 practice, fraud, abuse, or mist ake. Ñ

3. During the relevant time period , F lorida law define d

Ð abuse Ñ as Ð provider practices that are inconsistent with

generally accepted business or medical practices and that result

in an unnecessary cost to the Medicaid program or in

reimbursement fo r good s or services that are medically

un necessary, upcoded, or fail to meet professionally recognized

standard of health care . Ñ § 401.913(1)(a), Fla. Stat. Ð Abuse

may also include a violation of state or federal law, rule or

regulation. Ñ (Pet. Ex. 11, Provider General Handbook

(Jan. 2007), p. 1083; Pet. Ex. 11, Provider General Handbook

(July 2008), p. 1092). This definition is much broader than the

everyday definition of abuse as a Ð corrupt practice or custom. Ñ 1 /

4. ÐOverpayment includes any amount t hat is not authorized

to be paid by the Medicaid program whether paid as a result of

inaccurate or improper cost reporting, improper claims,

unacceptable practices, fraud, abuse or mistake.Ñ (Pet. Ex. 11,

Provider General Handbook (Jan. 2007), p. 1083; Pe t. Ex. 11,

Provider General Handbook (July 2008), p. 1092).

5 . As part of the Agency Ó s fulfillment of the statutory

directive to investigate overpayments, the Bureau of Medicaid

Program Integrity (MPI) in the Office of the Inspector General

routinely co nducts audits.

6 . A Medicaid provider is a person or entity that has

voluntarily chosen to provide and be reimbursed for goods or

services provided to eligible Medicaid recipients . A provider Ó s

participation requires an agreement with the Agency to prov ide

services. Alternative has been a Medicaid provider since 2004.

7 . Florida Ó s Medicaid program includes a program for people

with developmental disabilities. It uses the state and federal

Medicaid funds for home and community - based services. The

prog ram is known as the Home and Community - Based Waiver or

HCB W aiver.

8 . Florida Ó s Agency for Persons with Disabilities (APD)

administers the HCB W aiver pursuant to statute . APD is

responsible for the day - to - day operation of the HCB W aiver . APD

is the pr imary point of contact and source of information for HCB

Waiver providers , such as Alternative. The Interagency Agreement

(Agreement) between the Agency and APD establishes the

relationship between the two agencies and their obligations and

roles in this mutual undertaking. Alternative and other

providers are not parties to the Agreement

9 . The AgreementÓs Delegation of Authority for Waiver

Operation, Section B( 2 ) (R. Ex. B) , states:

Pursuant to the approved development

disabilities home and community - ba sed

waivers, [ the Agency ] has authorized [ APD ]

to operate the waivers on a day - to - day

basis, in accordance with this agreement.

This agreement memorializes an arrangement

under which APD will operate and make

appropriate decisions based upon approved

poli cy on behalf of and under the oversight

of [the Agency] .

10 . The Agreement obligates both agencies to operate the

waiver in accordance with law s , rules, regulations, and

handbooks.

11 . Section B( 4 ) (c) of the Agreement requires the Agency to

coordinate with APD Ð on all [waiver] administrative rules ,

amendments to rules, policies or regulations that pertain to the

waiver . Ñ Section B(4)(g) places responsibility for recouping

overpayments to HCB Waiver providers on the Agency.

12 . Section B( 4 ) (a) reserve s to the Agency Ð final authority

on all policies, procedures, rules, regulations, manuals,

handbooks, and statewide quality assurance monitoring procedures

pertaining to the development disabilities waivers. Ñ

13 . Section B( 5 ) (e) requires APD to advise the Agency in

advance of any proposed regulations or manuals developed by APD.

Section 5(g) obligates APD to assure payments to Ð providers

are reconciled based upon individual cost plans in the

DD [Developmental Disability] and F/SL [Family and Support

Living ] Waiver p rograms and are within the annual program

budgets . Ñ

14 . Under the HCB W aiver, recipients working with

independent waiver service coordinators plan their services

according to the recipient Ó s need s . The result is a detailed

support or cost plan . The support plan articulates the services

and the goals for each type of service needed . It is updated

annually . A service authorization is developed from each support

plan to specify the amount, by time and dollars, approved for

each type of service . The service authorization documents also

identify which Medicaid - contracted providers will provid e each of

the approved services. APD reviews and approves the support

plans. The 2007 and 2008 version s of the Developmental

Disabilities Services Coverage a nd Limitations Handbook

( DD Handbook ) specify in c hapter 2 - 5 that in order for a

recipient to receive a service , the service must be identified on

the recipient Ó s support plan approved by APD.

15 . Providers , like Alternative, rely upon the support

plans a nd service authorizations to de termine what services to

provide and if the services are authorized for payment.

16 . At all times material to this case, Alternative has

been a provider of HCB W aiver services to Medicaid recipients,

pursuant to a Medicaid pr ovider contract with the Agency and a

Medicaid Waiver Services Agreement with APD . Alternative

provides most services through independent contractors.

17 . The complex requirements governing providers in the

Medicaid p rogram are explicated in rules of the Agency and in t he

Medicaid Provider General Handbook, adopted by rule.

18 . More requirements for providers in the HCB W aiver are

imposed by rules of APD and the DD Handbook , developed by APD and

the Agency , and adopted by Agency rule.

19. For the time p eriod in this case , the June 2007 and

June 2008 versions of the Medicaid Provider General Handbook were

in effect. For the time period of this case , the June 2007 and

December 2008 versions of the DD Handbook were in effect.

The Chase

20 . The Medicaid payment process differs from a typical

commercial transaction. Robi Olmstead, a dministrator for the

Agency Ó s Office of the Inspector General, Medicaid Program

Integrity, described the process as Ð pay and chase. Ñ The Agency

accepts claims for payment at face value with very little review

and promptly pays them. But the Agency has the authority to

review claims long after paym ent and seek recoupment, Ð chase , Ñ if

it determines the claim was not proper. The AgencyÓs MPI o ffice

does the Ð chasing Ñ by conducting provider audits.

2 1 . In 2011 , the Agency audited Alternative Ó s claims for

the period January 1, 2008 , through June 30 , 2009. Kristen

Koelle, who conducted the audit, selected the time period to take

into account the fact that Alternative was a relatively new

provider and had a 12 - month window of opportunity to submit new

claims or void submitted claims. Typically , the Agency audits a

two - to - three year period of payments for providers with a longer

history.

2 2 . On November 4, 2010, the Agency sent a letter

requesting records from Alternative and advising that it was

conducting an audit. The letter sought records for 35 of

Alternative Ó s 85 Medicaid recipients to use as a cluster sample.

2 3 . Alternative responded promptly and provided very

organized records. The majority of issues identified in the

audit involved documentation, not a failure to provide services.

2 4 . The Agency uses a statistical formula to extrapolate

overpayments from the records and claims of the samples.

2 5 . The Agency issued a Preliminary Audit Report concluding

that Alternative owed $719,680.09 for overpayments for wrongly

made and paid claims. Af ter a typical process of communication,

supplementation of records, and review of documents, the Agency

issued a Final Audit Report reducing the amount to $452,821.65.

2 6 . By the time the hearing started , the Agency had reduced

the amount in an Amended F inal Audit Report to $155,747.97 and

had reduced the proposed fine from $90,564.33 to $31,149.59. By

law, the A gency Ó s audit report creates prima facie proof of

overpayments, which a provider has a right to dispute. In this

case, there is no dispute abou t the acceptability or application

of the Agency Ó s statistical formula for extrapolation . The

disputes are about which representative claims are properly input

into the extrapolation formula.

2 7 . During the hearing, Alternative agreed to several

additiona l claims.

2 8 . The parties jointly prepared an Appendix to their

proposed recommended orders identifying the remaining disputed

claims. It is attached as Exhibit A to this Recommended O rder

and adopted by reference. These are the claims t he Agency

maint ains should be use d in the formula to determine the full

amount of the asserted overpayments. Alternative disagrees.

2 9 . The remaining claims fall into four categories. They

are: (1) companion services provided to recipients living in

group homes ; (2) u nauthorized activities ; (3) overlapping of

support services ; and (4) ineligible staff.

30. Services are measured in Ðunits of serviceÑ of

15 minutes each.

Companion Services for Recipients Living In Group Homes

31 . During the time period when the June 2007 DD Handbook

was in effect , Alternative collectively provided and was paid for

640 units of service to four waiver recipients who resided in

licensed residential facilities or group homes. The recipients

are identified in this record as Recipients 7, 13, 14, and 25.

32 . Companion services are non - medical care supervision and

socialization activities provided to an adult individually. Th ey

may be activities such as assistance with grocery shopping,

housekeeping, or visiting the library. (DD Handbook, 2007,

Ch ap . 2 - 27).

3 3 . The June 2007 version of the DD Handbook states:

Ð Recipient Ó s [sic] living in licensed residential settings,

excluding foster homes, are not eligible to receive these

[companion] services. Ñ (DD Handbook, 2007, Ch ap . 2 - 28). The

D ecember 2008 version of the DD H andbook states that companion

care services may be provided to residents of a licensed group or

foster home.

3 4 . APD approved the support plans for Recipients 7, 13,

14, and 25 . The plans plainly stated that each recipient lived

in a residential living facility (group home). The support plans

also plainly identified companion services among the services to

be provided. (Pet. Ex. 8, pp. 491 - 501; 591 - 604; 628 - 636; and

857 - 864.)

3 5 . In addition, each recipientÓs waiver suppo rt

coordinator provided a service authorization for the companion

services.

3 6 . Alternative provided companion services as indicated in

the APD approved support plans and the service authorizations .

3 7 . Alternative Ó s consistent experience with providing

co mpanion services to residents in living facilities was that APD

approved and paid for providing those services under the

June 2007 DD H andbook.

3 8 . Because of the issues raised in the audit, i n an e - mail

dated May 19, 2011, Joyce Rowe, p resident of Alterna tive , wrote

Denise Oetinger, r egional p rogram s upervisor for APD , asking

about authorized services during the period January 2008 to

June 2009. Ms. Oetinger was an APD liaison to providers who

Alternative relied upon to explain the many requirements and

c onditions of the DD Handbook . Ms. Rowe Ó s e - mail said:

In our preliminary [Agency audit] review we

had four individuals which Alt Care received

services authorizations for that lived in a

group home [stet] . We provided the services

out in the community.

Kristen Koelle with AHCA Audit Recovery

stated in the handbook of limitations up to

12/3/2008 we were not allowed to provide

companion services to any individual living

in a licensed facility. Of course they

wanted to recoup thousands of dollars from

ou r company . Do we have any special

provisions or documentation why we were

getting these service authorizations sent to

us and getting paid for a service which was

unauthorized?

I called one of the support coordinators

because they are responsible in a se nse for

sending the authorizations. I was told to

e - mail you in hope for some answers.

3 9 . Ms. Oetinger replied 2 / :

Ms. Rowe, Companion can be provided to an

individual living in a licensed facility,

but it must be delivered in the community.

So they mus t leave the home they live in and

do something outside the home. This has not

changed from handbook to handbook. I will

ask that our inter - agency liaison

communicate with Kristen Koelle. Thank you

for bringing this to our attention and I

will get back t o you as I have more

information.

40 . In light of the Agreement, the way in which the Agency

and APD held themselves out to providers, the relationship

between APD and providers, the practice of relying upon APD for

guidance about the HCB W aiver, the appr oval of the support plans,

and the subsequent issuance of service authorizations,

Alternative reasonably relied upon APD - approved support plans and

the waiver support coordinator - provided service authorizations

when providing and obtaining payment for comp anion services to

Recipient s 7, 13, 14, and 25.

41 . In addition, the weight of the persuasive evidence

establishes that R ecipients 7, 13, 14, and 25 are the only

recipients living in a licensed residential facility for which

Alternative received payments f or companion services provided

during the audit period . Consequently , using those claims to

extrapolate to a recipient - wide population is not factually

supported.

Ineligible Staff

42 . Alternative employee Ben Alvarez provided personal care

assistance an d companion services to Recipient 3 . He also

provided in - home support services to Recipient 15.

4 3 . For the time period during which Mr. Alvarez provided

personal care assistance services, the December 2008 DD H andbook

was in effect. Chapter 1 - 25 require d individuals providing the

service to Ð have at least one year of experience working in a

medical, psychiatric, nursing or childcare setting or working

with recipients who have a developmental disability. Ñ It

permitted substitution of specified educationa l achievements for

the experience.

4 4 . Alternative did not have documentation that Mr. Alvarez

had the specified alternative educational achievements. It did

not have documentation that Mr. Alvarez had worked in a medical,

psychiatric, nursing , or child care setting.

4 5 . Alternative did have documentation that Mr. Alvarez had

six years Ó experience caring for an adult with developmental

disabilities , providing services , including personal care,

hygiene, grooming, bathing , and feeding. This individual was a

relative of Mr. Alvarez. Nothing in the documentation

establishes that the relative Mr. Alvarez was caring for was a

Medicaid recipient. Deposition testimony establishes that the

individual was a waiver recipient at the time of the deposition,

February 13, 2014. But it does not establish that he was a

recipient at the time Mr. Alvarez provided services . The

deposition is also not part of the documentation maintained by

Alternative.

4 6 . In sum, the weight of the persuasive evidence shows

Alternative did not have documentation that Mr. Alvarez met

the experience or substitute educational requirements of

c hapter 1 - 25.

4 7 . For the time period during which Mr. Alvarez provided

companion services, the December 2008 DD H andbook was in effect.

Chapter 1 - 18 required individuals providing the service to Ð have

at least one year of experience working in a medical,

psychiatric, nursing or childcare setting or working with

recipients who have a developmental disability. Ñ It also

permitted substitution of specifie d educational achievements for

the experience.

4 8 . T he weight of the persuasive evidence shows that

Alternative did not document that Mr. Alvarez met the experience

or substitute educational requirements of c hapter 1 - 18 .

4 9 . Chapter 1 - 23 of the DD Handbook imposes the same

experience and substitution education requirements for providers

of i n - h ome s upport services as required for c ompanion and

p ersonal c are services. As with them, the weight of the

persuasive evidence shows that Mr. Alvarez did not meet th e

experience or substitute educational requirements.

50 . An Alternative employee , known as Ora or Paul Richmond ,

provided 16 units of c ompanion services to R ecipient 11 on

March 2, 2009. At that time, the December 2008 DD H andbook was

in effect. Chapter 1 - 18 , above, established the experience and

requirements for providers of the service.

51 . Alternative Ó s documentation establishes that

Mr. Richmond lived with , and helped care for , his disabled father

from 2006 to 2008. Among other things , he helped hi s father with

cooking, cleaning, laundry , and bill paying. AlternativeÓs

documentation does not identify what disability Mr. Richmond Ó s

father had , a nd it does not indicate that Mr. Richmond Ó s father

was a Medicaid recipient.

5 2 . The weight of the persu asive evidence shows Alternative

did not document that Mr. Richmond met the experience or

substitute educational requirements of c hapter 1 Î 18 .

5 3 . The Agency paid Alternative for c ompanion services

provided by Christopher Rose to Recipients 13 and 14. Mr. Rose

provided the services during a period governed by the 2007

DD Handbook.

5 4 . The companion provider requirements of c hapter 1 - 18 of

that DD H andbook are the same as those of c hapter 1 - 18 of the

2008 version.

5 5 . Alternative Ó s documentation for Mr. Rose showed that he

had worked as a private - duty companion for an individual with

retardation for approximately three years. The documentation did

not indicate who the individual was, whether the individual was a

Medicaid recipient , or where the services were provided.

5 6 . The weight of the persuasive evidence shows Alternative

did not document that Mr. Rose met the experience or substitute

educational requirements of c hapter 1 - 18.

Documented Activity Support for Billing

5 7 . The Agency paid Alternative for 16 units of service for

companion services provided to Recipient 6 on March 27, 2008.

The sole documented description for the activity involved was

Ð enjoyed attending alternative office party. Ñ It does not

document what the activities were or where the party was.

5 8 . Ms. Rowe testified that the party was not accurately

described and that the office social was held in Bradenton,

Florida , at Bayshore Gardens. But that is not what the

documentation shows.

5 9 . The support plan for Recipient 6 provided t hat the

companion provider Ð will help [the recipient] participate in

activities outside of his home. [Recipient] will also explore

volunteer opportunities available to him. Ñ This is in support of

the larger goal of teaching him to interact in the communi ty.

60 . The documentation for the office party does not

document a connection between the support plan and the activity.

61 . The Agency paid Alternative for 14 units of companion

services provided to Recipient 12 on April 16, 2008.

6 2 . The support plan go als for Recipient 12 are to stay

home, be active with his family, identify someone to care for

him, go out into the community, be involved in community

activities, maintain a healthy weight , and maintain good dental

health.

6 3 . Alternative Ó s documentation for the services on

April 16 reports only Ð [a] ss. with indoor activities. Ñ It

provides no other descriptions of the activities. The

information is not sufficient to determine what relationship , if

any , the activities had to the recipient Ó s goals.

64 . M s. Rowe testified that the recipient had gone to his

community clubhouse that day. But that is not what the entry

says, in contrast to an April 17, 2008 , entry which specified

clubhouse activities. In addition , Ms. Rowe was not the service

provider and d id not provide information about how she knew what

that individual did that day. Her testimony was not persuasive.

65 . The Agency paid Alternative for 14 units of service for

companion services provided to Recipient 12 on April 30, 2008.

66 . Alternative Ó s documentation for the services on

April 30 , 2008, reports only Ð [a] ss. with activities at home. Ñ

It provides no other descriptions of the activities. The

information is not sufficient to determine what relationship , if

any , the activities had to the rec ipient Ó s community - oriented

goals.

67 . The Agency paid Alternative for 20 units of service for

companion services provided to Recipient 18 on January 7, 2008.

68 . The recipient Ó s support plan for companion services

focuses on going out into the community to eat, visit parks, go

to places of interest , and attend parties.

69 . Alternative Ó s documentation for the services describes

the activi ties from 1:30 p.m. to 4:30 p . m. , a s Ð [p] repare lunch,

ate 100%, change underwear, small walk, watch some TV by reque st,

lie for a rest on sofa. Ñ Lunch preparation and changing clothes

are not companion services. They are personal care assistance

services. The Agency reasonably deducted two units of service

for these claims.

70 . Also on January 7, 2008, a different pr ovider of

companion services describes the activities from 4:30 p.m. to

6:30 p.m. , as Ð watched t.v. [and] chilled out today. Ñ These

activities are not activities related to the companion services

of the support plan. There is no documentation supporting the

claim for payment for the time between 4:30 p.m. and 6:30 p.m.

The Agency reasonably denie d payment for two units of service for

this time period.

71 . The Agency paid Alternative for 20 units of service for

companion services provided to Recipient 18 on March 1, 2009.

72 . The documentation for those services states only: Ð We

stayed in due to weather. Ñ It provides no information about the

weather, what activities the recipient engaged in while Ð in, Ñ or

why the weather precluded all community activitie s. The

documentation does not support the claim for billing 20 units of

service .

Unauthorized Activities

73 . The Agency paid Alternative for 12 units of service for

in - home support services provided to Recipient 15 on February 21,

2008.

74 . The recipient Ó s support plan described his goals to be

advanced by in - home support services as Ð learn how to better take

care of his apartment, cook for himself, clean his apartment, do

his laundry, and learn to make independent life decision [s] . Ñ

75 . Alternative Ó s d ocumentation describes the day Ó s

activities as Ð [Recipient] and I went to the library. Then watch

[sic] a little TV. I left early because he said he was tired. Ñ

76 . Watching television is not an activity within the

authorized in - home support services. I t is reasonable to reduce

the claimed units of service by one to adjust for the time spent

providing an unauthorized service.

77 . The Agency paid Alternative for 20 units of service for

in - home support services provided to Recipient 15 on April 2,

2008.

7 8 . Alternative Ó s documentation from the caregiver

describing the services states: Ð [Recipient] and I went to the

store to pick up several items. Then came back to his place and

played dominos. Ñ

79 . The weight of the persuasive evidence establishes that

t here is no connection between playing dominos and the services

for which in - home support was authorized.

80 . Deducting one unit of service from the services paid

for to account for time spent playing dominos is reasonable .

81 . The Agency paid Alternative for 20 units of service for

in - home support services provided to Recipient 15 on June 25,

2009.

8 2 . The caregiver provided multiple services that day. The

documented activities included watching two movies, Bolt and the

Spiderwick Chronicles.

8 3 . The w eight of the persuasive evidence establishes that

there is no connection between watching the movies and the

services for which in - home support was authorized. Deducting the

claimed units of service to Recipient 15 by one , as the Agency

recommends, is a r easonable accounting for the time spent

watching the movies.

8 4 . On February 20, 2008, Alternative billed for 32 units

of service for companion services for Recipient 26.

8 5 . The support plan for Recipient 26 identifies

Alternative as providing the compa nion services for his goal to

Ð want to do some volunteer work and learn how to socialize with

others [sic] people that will not take advantage of me. Ñ

8 6 . Alternative Ó s documentation for the companion services

on February 26, 2008 , includes Ð doing laundry at home and

babysitting nephew. Ñ These activities are not within the scope

of the support plan for companion services or directed to a

related goal.

8 7 . Deducting a unit of service for Recipient 26 on

February 20, 2008, by one to account for th e laundry a nd

babysitting is reasonable.

8 8 . On January 22, 2008, Alternative billed for 24 units of

service for companion services for Recipient 33.

8 9 . The recipient Ó s support plan lists the following goals

that require companion services: Ð work on building practi cal

skills, making choices, and verbally communicating opinions,

wants and needs to others. I want to continue learning to be

safe within [t] his community. Ñ

90 . Alternative Ó s documentation to support payment

describes the day Ó s activities as Ð [t] ook [Reci pient] to the

Library, [illegible] Target, Dollar, [illegible], watched a movie

at his house. Ñ

91 . Watching television at the recipient Ó s house does not

fall within the scope of the Recipient Ó s companion services .

9 2 . Deducting a unit of service for that day by one to

account for the time spent watching a movie is reasonable .

Overlapping and Unsupported Claims

9 3 . The Agency paid Alternative for respite care to

Recipient 16 from noon to 6:00 p.m., 34 units of service, on

March 3, 2009.

9 4 . The narrativ e by Van Greenlaw for the respite care log

entry on March 3, 2009, reports: Ð I arrived today got lunch

ready, he went to the gym, came back, plays some of his games,

after that he got ready to go to church with [illegible], day

ends. Ñ

9 5 . The work hours a re changed by strike - through s to

1:30 p.m. to 6:00 p.m. on another copy of the log. The log does

not show the date of the change or who made the change.

9 6 . The personal care assistance service log for March 3

shows Mr. Greenlaw as working from noon to 6: 00 p.m.

9 7 . Another copy of the personal care assistance log shows

a struck - through revision indicating that personal care services

were provided between noon and 1:30 p.m. The log does not show

the date of the change or indicate who made the change.

9 8 . The revised service logs and the invoice for the week Ó s

services by Mr. Greenlaw do not reconcile. The invoice shows a

total of 2.5 hours (10 units of service) of companion services

from 12:30 p.m. to 2:30 p.m. and 4.5 hours (18 units of service)

respit e care from 2:30 p.m. to 6:00 p.m . (Pet. Ex. 8, p. 752).

There are no logs documenting provision of companion care

services.

9 9 . Alternative billed for 18 units of respite service for

March 3, 2009, and six units of service for companion services,

not th e personal care assistance services identified in the log .

(Koelle, Tr. at 148 - 149, Pet. Ex. 752).

100 . In addition to the reconciliation inconsistency, the

invoice has a math error . The actual amount of time between

2:30 p.m. and 6:00 p.m. is only 3.5 hours (14 units of service)

for respite care , not the invoiced 4.5 hours.

101 . Alternative concedes one hour of overbilling . It

offers no explanation for billing for companion services when the

only record of services is for personal care and respite ca re.

10 2 . The documentation only supports billing for 14 units

of respite care service on March 3, 2009 , for Recipient 16.

Therefore , the billable units of service for Recipient 16 on

March 3, 2009 , should be reduced by 20, from 34 to 14 , when

applying th e AgencyÓs extrapolation formula .

Training of Ora Richmond

10 3 . Alternative hired Ora (Paul) Richmond as a caregiver

on February 7, 2009. The first date that there is a record of

him providing recipient services is March 2, 2009.

10 4 . Mr. Richmond recei ved his zero tolerance training on

March 10, 2009. He received his Ð Core Competency Ñ training on

January 10, 2010.

10 5 . The Agency maintains that Mr. Richmond did not have

the training required by the applicable DD Handbook when he

provided services on March 2, 2009, and that the 16 units of

service for that day should be disallowed.

10 6 . The Agency refers to the December 3, 2008 ,

DD Handbook. The handbook took effect on December 3, 2008. The

provision, section 2.1(H) , imposing the new zero tolerance

training requirement , provided: Ð 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 ca re services (as a pre - service training activity). Ñ

Mr. Richmond was hired less than 90 days from the effective date

of the requirement.

10 7 . Section 2.1(G) of the provision requiring Ð Core

Competency Ñ training stated: Ð All direct service providers are

r equired to complete training in the APD Ó s Direct Care Core

Competencies Training, or an equivalent curriculum approved by

APD within 90 days of employment or enrollment to provide the

service. Ñ The 90th day after Mr. Richmond Ó s employment was

May 8 , 2009. Therefore , he was not in violation of the core

competency requirement when he provided services to Recipient 11

on March 2, 2009. However, as determined in Findings of Fact 50

through 52 , he did not have the experience required to serve as a

caregiver.

CONCLUSIONS OF LAW

10 8 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2013).

10 9 . The statutes and rules in effect during the period for

which services were provided govern this dispute. Toma v. Ag.

for Health Care Admin. , Case No. 95 - 2419, RO at ¶ 213 (Fla. DOAH

July 26, 1996; Fla. AHCA Sept. 24, 1996). This includes the

provider handbooks pertinent to this case: the Medicaid Provider

Genera l Handbook, and the Developmental Disabilities Waiver

Services Coverage and Limitations Handbook, which are promulgated

as rules.

1 10 . The Agency is empowered to "recover overpayments . . .

as appropriate." § 409.913, Fla. Stat. An "overpayment"

includ es "any amount that is not authorized to be paid by the

Medicaid program whether paid as a result of inaccurate or

improper cost reporting, improper claiming, unacceptable

practices, fraud, abuse, or mistake." § 409.913(1)(e), Fla.

Stat.

1 11 . Payments a re not "authorized to be paid by the

Medicaid program" when the provider has not complied with section

409.913(7), which at all times material to this case provided, in

pertinent part, as follows:

When presenting a claim for payment under the

Medicaid pro gram, a provider has an

affirmative duty to supervise the provision

of, and be responsible for, goods and services

claimed to have been provided, to supervise

and be responsible for preparation and

submission of the claim, and to present a

claim that is tr ue and accurate and that is

for goods and services that:

* * *

(e) Are provided in accord with applicable

provisions of all Medicaid rules, regulations,

handbooks, and policies and in accordance with

federal, state, and local law.

(f) Are docum ented by records made at the

time the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendered. Medicaid goods or

services are excessive or not medically

necessary unless both the medical basis and

the specif ic need for them are fully and

properly documented in the recipient's medical

record.

The agency may deny payment or require

repayment for goods or services that are not

presented as required in this subsection.

11 2 . Recoupment of overpayments is one remedy that the

Agency is authorized to seek to remediate proven charges under

what, in 200 8 , was section 409.913(15). Colonnade Med. Ctr.,

Inc. v. Ag. for Health Care Admin. , 847 So. 2d 540 (Fla. 4th DCA

2003)(confirming the Agency 's authority to recover overpayments

to remediate proven charges under what was then section

409.913(14)). Section 409.913(15) provides, in pertinent part,

as follows:

The agency may seek any remedy provided by

law, including, but not limited to, the

remedies provided in subse ctions (13)

and (16) and s. 812.035, if:

* * *

(c) The provider has not furnished or has

failed to make available such Medicaid - related

records as the agency has found necessary to

determine whether Medicaid payments are or

were due and the amount s thereof;

* * *

(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

regulation s; with provisions 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 su ch

provisions apply to the Medicaid program.

11 3 . The Agency bears the burden of establishing an alleged

Medicaid overpayment by a preponderance of the evidence. S. Med.

Servs., Inc. v. Ag. for Health Care Admin . , 653 So. 2d 440, 441

(Fla. 3d DCA 1995) ; Southpointe Pharmacy v. Dep't of HRS ,

596 So. 2d 106, 109 (Fla. 1st DCA 1992). The AgencyÓs burden of

proof with respect to the imposition of fines is clear and

convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

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

11 4 . Although the Agency bears the ultimate burden of

persuasion and must present a prima facie case, section

409.913(20) provides that "[i]n meeting its burden of proof

. . . , the agency may introduce the results of [generally

accepted] st atistical methods as evidence of overpayment." In

addition, section 409.913(22) provides that "[t]he audit report,

supported by agency work papers, showing an overpayment to the

provider constitutes evidence of the overpayment." Thus, the

Agency can make a prima facie case by proffering a properly

supported audit report, which must be received in evidence. See

Full Health Care, Inc. v. Ag. for Health Care Admin. , Case

No. 00 - 4441 (Fla. DOAH June 25, 2001; Fla. AHCA Sept. 28, 2001).

11 5 . If the Agency m akes a prima facie case as outlined by

the statute, then it is "incumbent upon the provider to rebut,

impeach, or otherwise undermine AHCA's evidence." Ag. for Health

Care Admin. v. Bagloo , Case No. 08 - 4921, RO at p. 33 (Fla. DOAH

Sept. 10, 2009; Fla. AHC A Nov. 8, 2010).

11 6 . The Agency presented a prima facie case by presenting

its properly supported audit report, including work papers.

Alternative did not dispute the AgencyÓs sampling or

extrapolation. It, however, disputed whether some of the sample

claims in the four categories identified in the Findings of Fact

were properly used in the extrapolation.

11 7 . The issues in this case come down to how the following

sections of the DD Handbook, Statements of Policy and Application

of the HCB Waiver p ro gram by APD, and Florida Statutes are

appropriately interpreted and applied to the proven facts and

whether, by law, the Agency is estopped from recouping payment

for companion services provided in the community to residents of

licensed facilities.

Develop mental Disabilities Handbook and General

Handbook Requirements

11 8 . The DD Handbook in effect at the time the Agency paid

Alternative for providing companion services to residents of

licensed facilities did not allow payment for the services. This

Alte rnative acknowledges. But it argues that the facts here

present one of the exceptional cases in which estoppel may be

applied against the state. The Agency does not dispute that

estoppel may be applied in a proceeding before DOAH. But it

argues that in this case the facts do not meet the standard s for

application of estoppel against the state.

119 . In order to establish estoppel , the party must show a

misrepresentation of a material fact contrary to a later claimed

position, reliance on the misrepres entation, and a detrimental

change in position because of the representation and reliance.

Council Bros . , Inc. v. City of Tallahassee , 634 So. 2d 264, 266

(Fla. 1st DCA 1994). To establish estoppel against the state , a

party must also show affirmative c onduct by the government beyond

negligence, that not applying estoppel will cause a serious

injustice, and that applying estoppel will not unduly harm the

public interest. Alachua Cnty. v. Cheshire , 603 So. 2d 1334,

1337 (Fla. 1st DCA 1992) . The compelling facts here establish

proper circumstances for the application of estoppe l.

12 0 . The state , through APD, which is a partner with the

Agency in administration of the waiver program and the providersÓ

primary contact, made a material, although not deceitful or

deliberate, misrepresentation that companion services provided to

w aiver recipients residing in licensed residential facilities

were permitted if provided outside the residence. This is shown

by APDÓs affirmative approval of the support plans that clearly

provided for companion services for recipients clearly living in

l icensed residential facilities. This practice is confirmed by

Ms. OetingerÓs e - mail and the fact that waiver support

coordinators also understood that the services could be provided

and authorized by them.

12 1 . Alternative relied upon the representatio ns of APD by

its practice of approving support plans and by providing the

services to the benefit of the recipients. Requiring Alternative

to repay substantial sums, when it provided the services, would

be a serious injustice. Applying estoppel will not unduly harm

the public interest since the recipients received the benefit of

the companion services.

12 2 . For this reason , the payments to Alternative for

companion services provided to residents of licensed residential

facilities should not be disallow ed or included in the recoupment

calculation. There is an additional reason that the payments

should not be used in the AgencyÓs extrapolation.

12 3 . Section 409.913(22) makes the AgencyÓs audit report

prima facie evidence of overpayment. The law express ly permits

use of samples and a statistical formula to extrapolate

overpayments. § 409.913(20) , Fla. Stat .

12 4 . The opinion in Ag ency for Health Care Admin istration

v. Custom Mobility , Inc., 995 So. 2d 984, 986 - 987 (Fla. 1st DCA

2008) , accepted the Age ncyÓs cluster sampling method as a means

to carry out the requirements of section 409.913(20). In

general, also, statistical extrapolation is a recognized, valid

audit technique. Michigan Dep Ó t of Educ. v. U.S. Dep Ó t of Educ. ,

875 F.2d 1196, 1205 (6th Ci r. 1989) . But extrapolation is not

presumptively conclusive. Michigan Dep Ó t of Educ. , 875 F.2d

at 1205. The weight attributed to statistical evidence must be

considered in light of the difficulties of "obtaining a claim - by -

claim review." Michigan Dep Ó t of Educ. , 875 F.2d at 1205 .

12 5 . In this case a claim - by - claim review proved that

AlternativeÓs only claims for companion services provided to

residents of licensed residential services were the claims for

Recipients 7, 13, 14, and 25. Consequently, eve n if the Agency

were not estopped from seeking recoupment, it could not

extrapolate from those claims to the complete patient universe.

It could only recoup the payments made for the services to those

four recipients.

126. The APD Procedure N o. APD 18 - 00 2, Provider Recoupment

and Overpayment for Services Funded by the HCB Waivers , also

supports concluding that the Agency should not recoup the

companion service payments. It recommends at page 19, that if a

service is approved in a cos t plan and authorized by the support

coordinator , that funds should not be recouped from the provider.

(R. Ex. C . )

12 7 . Alternative also relies upon the prohibition in

section 409.907(5)(b) against Ðdemanding repayment from the

provider in any instance in which the Medicaid overpayment is

attributable to error of the department in the determination of

eligibility of a recipient.Ñ The reliance is unfounded. The

reference to ÐdepartmentÑ is to the Department of Children and

Families , which is the agency that determines eligib ility for

Medicaid services. § 414.095, Fla. Stat. Also, the Agency is

not contending that the recipients are not eligible for the

HCB Waiver services.

Adequate Documentation

128 . Section 409.913(7)(f) requires providers to make sure

that claims for ser vices are documented by records created

contemporaneously with the provision of the service. Alternative

did not adequately document services provided to Recipients 6,

12, 15, 16, 18, 26, 30, and 33 , as determined in the Findings of

Fact.

129. One exampl e from the d efinitions section of the 2008

DD Handbook exemplifies the inadequacy of the service

descriptions. The Daily Progress Note definition provides :

Daily, on the days that service was

rendered [,] notes of the recipientÓs

progress towards achieving his support plan

goals for the period being billed or the

summary describing the treatment or training

provided to the recipient or task

accomplished. For example: August 11,

2007, John prepared macaroni and cheese in

the microwave successfully for his

housemates. This activity supports a goal

on his support plan to learn how to cook.

130. None of the questioned documentation in this case

comes near to the degree of specificity given in this example.

The documentation does not describe the relation t o a goal at

all , a nd provides, at best, a rudimentary activity description.

131. Section 409.913(7)(f) also requires providers to

ensure and document that caregivers meet all eligibility,

education, and training requirements. As determined in the

Finding s of Fact, Alternative did not fulfill this requirement

for Ben Alvarez, Ora (Paul) Richmond, and Christopher Rose.

R ecoupment and Costs

132. The record does not permit a determination of the

amount to be recouped after the adjustments described above ,

b ecause it does not contain the extrapolation formula in a form

that it can be applied. Consequently , this O rder recommends that

the Agency recalculate the extrapolated amount for recoupment and

provide a point of entry for Alternative to contest that

calc ulation , if disputed.

133. Similarly , the Agency seeks costs and interests as

provided by sections 409.913(23) and 409.913(25)(c). But the

record does not permit a determination of either. As the parties

agreed at the conclusion of the hearing, those is sues are

reserved for the Agency to determine with Alternative being given

a point of entry , if it disputes the AgencyÓs determination.

S anctions

134. Section 409.913(15)(e) authorizes the Agency to impose

sanctions set forth in section 409.913(13) and (1 6), if the

provider fails to comply with the Medicaid provider handbooks

adopted by rule or the provisions of state and federal laws,

rules or regulations.

135 . Florida Administrative Code Rule 59G - 9. 070(7)

provides:

SANCTIONS: In addition to the recoupm ent 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., the following

sanctions shall be impose d as follows:

* * *

(e) Failure to comply with the provisions

of the Medicaid provider publications that

have been adopted by reference by rules,

Medicaid laws, the requirements and

provisions in the providerÓs Medicaid

provider agreement, or the cer tification

found on claim forms or transmittal forms

for electronically submitted claims by the

provider or authorized representative.

13 6 . Florida Administrative Code Rule 59G - 9.070(7)(e)

provides for fines for failure to comply with the Medica i d

handbo oks. The maximum permitted fine is 20 percent of the

overpayment amount.

13 7 . S ection 409.913(17) imposes the following requirements

on the Agency:

(17) In determining the appropriate

administrative sanction to be applied, or

the duration of any suspens ion or

termination, the agency shall consider:

(a) The seriousness and extent of the

violation or violations.

(b) Any prior history of violations by the

provider relating to the delivery of health

care programs which resulted in either a

criminal convi ction or in administrative

sanction or penalty.

(c) Evidence of continued violation within

the provider's management control of

Medicaid statutes, rules, regulations, or

policies after written notification to the

provider of improper practice or instance of

violation.

(d) The effect, if any, on the quality of

medical care provided to Medicaid recipients

as a result of the acts of the provider.

(e) Any action by a licensing agency

respecting the provider in any state in

which the provider operates or h as operated.

(f) The apparent impact on access by

recipients to Medicaid services if the

provider is suspended or terminated, in the

best judgment of the agency.

The agency shall document the basis for all

sanctioning actions and recommendations .

( e mph asis added ) .

13 8 . There is no evidence in the record that the Agency

considered the se requirements in deciding to impose the maximum

sanction permitted by law on Alternative .

1 39 . Ch apter 2 - 57 of the Provider General Handbook informs

all providers that if they are not in compliance with the

Medicaid documentation requirements and records retention

requirements, they may be subject to administrative sanctions, as

well as overpayment recoupment. (Pet. Ex. 11, Provider General

Handbook (Jan. 2007), p. 1082 ; Pet. Ex. 11, Provider General

Handbook (July 2008), p. 1091). Ch ap ter 5 - 4 of the Provider

General Handbook describes a list of sanctions, any of which the

Agency may impose. (Pet. Ex. 11, Provider General Handbook

(Jan. 2007), p. 1084; Pet. Ex. 11, Pro vider General Handbook

(July 2008), p. 1093).

14 0 . Rule 59G - 9.070(7)(e) provides fines for failure to

comply with the Medicaid handbooks. The rule establishes a

maximum fine of 20 percent of the overpayment amount.

14 1 . Weighing all the factors in sect ion 409. 9 13 (17)

mitigates the imposition of any fine upon Alternative. There is

no evidence of previous administrative sanctions, no evidence

that Alternative continued any of the errors after being advised

of them, no evidence of any negative effect on p atient care, no

evidence of an impact upon access to services, and no evidence of

action against Alternative by other jurisdictions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Heal th Care

Administration recalculate the amounts to be recouped applying

the Procedure Codes, units of service, and amount per unit of

service , as shown in the Appendix , with the following

adjustments :

1. The Agency will not include in recoupment calculatio ns ,

for the reason that Alternative provided the services to

residents of a licensed residential facility, any payments made

for companion services provided to Recipient s 7, 13, 14, and 25.

2. The Agency will include in recoupment calculations the

amounts and units of service paid to Alternative for

Mr . Alvarez Ó s companion and personal care assistance services to

Recipient 3 and his in - home support services to Recipient 15, as

shown in the Appendix.

3. The Agency will include in recoupment calculations th e

amounts and units of service paid to Alternative for

Mr. Richmond Ós services to Recipients 1 1 , as shown in the

Appendix.

4 . The Agency will include in recoupment calculations the

amounts and units of service paid to Alternative for Mr. Rose Ó s

companion services to Recipient s 13 and 14, as shown in the

Appendix.

5 . The Agency will include in recoupment calculations the

amounts and units of service paid to Alternative for the 16 units

of service shown in the Appendix , as provided to Recipient 6 on

March 2 7, 2008.

6 . The Agency will include in recoupment calculations the

amounts and units of service paid to Alternative for 14 units of

companion service provided to Recipient 12 on April 16, 2008, as

shown in the Appendix.

7 . The Agency will include in rec oupment calculations the

amounts and units of service paid to Alternative for 14 units of

companion service provided to Recipient 12 on April 30, 2008, as

shown in the Appendix.

8 . The Agency will include in recoupment calculations the

amounts and units o f service paid to Alternative for four units

of service on January 7, 2008, to Recipient 18.

9 . The Agency will include in recoupment calculations the

amounts and units of service paid to Alternative for 20 units of

service on March 1, 2009, to Recipient 18 , as shown in the

Appendix.

10 . The Agency will include in the recoupment calculations

the amounts and units of service paid to Alternative for one unit

of in - home support service provided on February 21, 2008, to

Recipient 15.

11 . The Agency will incl ude in the recoupment calculations

the amounts and units of service paid to Alternative for one unit

of in - home support service provided on April 2, 2008, to

Recipient 15.

1 2 . The Agency will include in the recoupment calculations

the amounts and units of service paid to Alternative for one unit

of service of in - home support services provided on June 25, 2009,

to Recipient 15. (This should not be cumulative to the inclusion

in the calculation of all 20 units of service that day due to an

ineligible staf f providing the services.)

1 3 . The Agency will include in the recoupment calculations

the amounts and units of service paid to Alternative for one unit

of companion service provided on February 20, 2008, to

Recipient 26.

1 4 . The Agency will include in the recoupment calculations

the amounts and units of service paid to Alternative for one unit

of companion service provided on January 22, 2008, to

Recipient 33.

1 5 . The Agency will include in the recoupment calculations

the amounts and units of service p aid to Alternative for 20 hours

of service provided o n March 3, 2009 , for Recipient 16.

1 6 . The Agency will not impose a sanction upon Alternative.

Jurisdiction is reserved to determine costs and interests ,

if the parties are not able to agree upon them a nd to consider a

challenge, if any, to the extrapolation based upon the findings

and conclusions of this Recommended Order.

DONE AND ENTERED this 28th day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 Admi nistrative Hearings

this 28th day of July , 2014 .

ENDNOTE S

1/ Abuse d efinition, M eriam - W ebster .com , http://www.merriam -

webster.com/dictionary/abuse .

2 / This e - mail was accepted as direct evidence based upon the

conclusion of the undersigned that the A greement between the

Agency and APD and Ms. Rowe Ó s descriptions of her dealings with

representatives of the two agencies establish that APD was an

agent of the Agency and that the statement was , therefore , a

party statement. See , Stone v. Palms W. Hosp. , 941 So. 2d 514

(Fla. 4 th DCA 2006). If the statement is treated as only hearsay,

it corroborates the testimony of Ms. Rowe about her dealings with

the Agency and APD and terms of the Agreement , which support the

same finding.

COPIES FURNISHED:

Elizabet h Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J . Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Karen A. Brodeen, Esquire

Office of the Attorney General

Plaza Level 01

The Capitol

Tallahassee, Florida 32399 - 1050

Frank P. Rainer, E squire

Broad and Cassel

Suite 400

215 South Monroe Street

Tallahassee, Florida 32301 - 1804

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 excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.