14-004171MPI Agency For Health Care Administration vs. Lee Memorial Health System, D/B/A Lee Memorial Hospital Status: Closed Recommended Order on Wednesday, April 27, 2016.

Summary: Petitioner presented evidence to support overpayment to Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case Nos. 14 - 4171MPI

15 - 3271MPI

LEE MEMORIAL HEALTH SYSTEM,

d/b/a LEE MEMORIAL HOSPITAL,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was conducted

in this case on January 26, 2016, in Tallahassee, Florida,

before Lynne A. Quimby - Pennock, an Administrative Law Judge with

the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Daniel Elden Nordby, Esquire

Shutts and Bowen LLP

Suite 804

215 South Monroe Street

Tallahassee, Florida 32301

For Respondent: Joanne Barba ra Erde, Esquire

Duane Morris LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration (Agency

or AHCA) i s entitled to recover certain Medicaid funds paid to

Lee Memorial Health System, d/b/a Lee Memorial Hospital

(Respondent or Lee Memorial) , for services provided to

undocumented aliens : between January 1 through December 31,

2006, as alleged in AHCAÓs Amend e d Final A udit Report , dated

July 25, 2014 (DOAH Case 14 - 4171); and January 1 through

December 31, 2007, as alleged in AHCAÓs Final Audit Report ,

dated March 12, 2015 (DOAH Case 15 - 3271).

PRELIMINARY STATEMENT

This is a Medicaid overpayment recoupment case based upon

alleged overpayments made to Respondent for 29 claims. There

are two audit periods: January 1, 2006, through D ecember 31,

2007; and January 1 through December 31, 2007. Petitioner

maintains that Medicaid payments for medical services rendere d

to aliens may only be paid for services rendered during the

period of emergency for the patient. The services may have been

medically nece ssary or appropriate treatment; however, Medicaid

is not responsible for the treatment if the emergency condition

h as been alleviated.

Respondent argues that all treatment rendered was medically

necessary, was approved for eligible aliens, and has been

untimely challenged. Respondent avers that to use hindsight as

the standard for review is inappropriate.

DOAH CASE N O. 14 - 4171

On August 14, 2012, the Agency issued to Lee Memorial a

Final Audit Report (FAR) following the AgencyÓs review of claims

for Medicaid reimbursement for services rendered by Lee Memorial

between January 1 and December 31, 2006. Lee Memorial subm itted

a petition for hearing to AHCA and the matter was referred to

DOAH on September 10, 2012. On a joint request, the DOAH matter

was closed and jurisdiction was relinquished to AHCA on

January 23, 2013. The Agency issued an Amended Final Audit

Report (AFAR) to Respondent on July 25, 2014. At the time the

AFAR was issued, jurisdiction of the matter remained with the

Agency. 1/ The AFAR sought reimbursement of : $62,567.99 2/ in

alleged Medicaid overpayments; $2,500 in an administrative fine;

and $2,062 .04 in costs. Following receipt of the AFAR,

Respondent again requested a hearing, and the matter was

referred to DOAH. This case was originally scheduled to be

heard in December 2014.

DOAH CASE NO. 15 - 3271

On March 12, 2015, the Agency issued to Lee Mem orial a FAR

following the AgencyÓs review of claims for Medicaid

reimbursement for services rendered between January 1 and

December 31, 2007. The FAR sought reimbursement of :

$102,712.15 in alleged Medicaid overpayments; $2,500 in an

administrative fine; and $3 ,528.41 in costs . Respondent

requested a hearing, and the matter was referred to DOAH. This

case was originally scheduled to be hear d in November 2015.

RespondentÓs Unopposed M otion to C onsolidate the two DOAH

cases was granted on October 22, 2015 . On December 22, 2015,

RespondentÓs Motion to File a Consolidated Amended Petition

(m otion) was filed . This m otion requested the opportunity to

set forth additional legal issues. The motion was denied.

Prior to the hearing, the parties submitted a Join t

Prehearing Stipulation. To the extent ap propriate, the

stipulations appear below.

At the final hearing, Tracy Ryder , a registered nurse (RN)

consultant and investigator in the AgencyÓs Bureau of Medicaid

Program Integrity , was called to testify. The Ag ency offered

Exhibits 1 through 67, which were received into evidence without

objection. Respondent offered Exhibits 1 through 4 6, which were

received into evidence without objection. Both set s of exhibits

included, among other documents, the depositions of physician

peer reviewers.

At the close of the hearing, Respondent requested 30 days

from the filing of the transcript to file proposed recommended

orders (PROs). The request was granted. Following the hearing,

each party designated specific admitted deposition transcripts

and prior hearing transcripts for review.

The one - volume Transcript was filed on February 16, 2016.

The parties timely filed PROs on March 16, 2016, 3/ and each PRO

has been duly considered by the undersigned in the preparation

of th is Recommended Order.

Unless otherwise indicated, citations to the Florida

S tatutes refer to Florida Statutes 2015, except that all

references to statutes or rules relating to Medicaid eligibility

or coverage are to the versions that were in effect on the dates

of service giving rise to the alleged overpayments.

FINDING S OF FACT

THE PARTICIPANTS

1. Lee Memorial was, at all relevant times, an enrolled

Medicaid provider authorized to receive reimbursement for

covered goods and services provided to Medicaid r ecipients. As

an enrolled provider, Lee MemorialÓs participation in the

Florida Medicaid Program is subject to the terms of the Medicaid

Provider Agreement. The Florida Medicaid Program requires

compliance with all state and federal laws governing the

Me dicaid program, including the state and federal laws limiting

Medicaid payments for services provided to aliens.

2. As indicated, the Agency is the single state agency

responsible for administering or supervising the administration

of the Florida Medi caid Program (Medicaid) . § 409.901(15), Fla.

Stat.

PRELIMINARY: F LORIDA M EDICAID PROGRAM

3. Section 409.901(16), Florida Statutes, provides that

the Medicaid program is Ðauthorized under Title XIX of the

federal Social Security Act which provides for payment s for

medical items or services, or both, on behalf of any person who

is determined by the Department of Children and Families, or,

for Supplemental Security Income, by the Social Security

Administration, to be eligible on the date of service for

Medicaid assistance.Ñ The Medicaid program is jointly funded by

the federal government and the individual states that have

elected to participate in the program, of which Florida is one.

Federal payments to the states for a portion of the cost of

Medicaid are ref erred to as fe deral financial participation

( FFP).

4. AHCA administers the Medicaid program. AHCA is

authorized to make payments to Medicaid providers for medical

assistance and related services under Title XIX of the Social

Security Act . However , in or der to receive Medicaid assistance,

t he Department of Children and Families (DCF) must determine the

eligibility of applicants for that assistan ce.

5. Pursuant to section 409.902(1), DCF has adopted Florida

Administrative Code Rule 65A - 1.715 which address es Medicaid

eligibility for aliens. This rule provides:

(1) Aliens who would be eligible for

Medicaid but for their immigration status

are eligible only for emergency medical

services. Section 409.901(10) F.S . , defines

emergency medical conditions.

(2) The Utilization Review Committee (URC)

or medical provider will determine if the

medical condition warrants emergency medical

services and, if so, the projected duration

of the emergency medical condition. The

projected duration of the emergency medical

condition will be the eligibility period

provided that all other criteria are

continuously satisfied .

(3) Emergency services are limited to 30

consecutive days without prior approval.

For continued coverage beginning with the

31st day prior authorizati on must be

obtained from the Agency for Health Care

Administration (Medicaid Program Office).

[Emphasis added].

The eligibility period for alien recipients is also described in

r ule 65A - 1.702, which states:

(2) Date of Eligibility. The date

e ligibility for Medicaid begins. This was

formerly called the date of entitlement.

The date of eligibility includes the three

months immediately preceding the month of

application (called the retroactive period).

Eligibility for Medicaid begins the first

day of a month if an individual was eligible

any time during the month, with the

following exceptions:

* * *

(c) Coverage for individuals eligible for

the Emergency Medicaid for Aliens program

begins the first day of a covered emergency

and ends the day following the last day of

the emergency medical situation .

[ E mphasis added] .

6. DCF is performing an administrative function, solely to

determine if the alien is eligible to receive medical

assistance. DCF does not determine the duration of the

emergen cy medical condition. DCF does not make a clinical

medical determination regarding any patient because it does not

have medical professionals to verify the information received.

DCF has the dates of eligibility, but AHCA determines which

bills are paid. AHCA relies on licensed medical physicians to

determine the duration of t he emergency medical services.

7. Undocumented aliens do not qualify to receive full

Medicaid benefits. As detailed in Agency handbooks, the aid is

limited to the treatment of an e mergency medical condition up to

the point that condition has been alleviated.

8. According to section 409.902 (2) , Medicaid eligibility

is restricted to U.S. citizens and lawfully admitted noncitizens

who meet the criteria provided in section 414.095(3) , Florida

Statute . 4/ The criteria mean that undocumented or illegal aliens

are generally not eligible for Medicaid assistance. All of the

claims in dispute in this case involve payments on behalf of

undocumented noncitizens who will be referred to herein a s

"aliens."

9. As an exception to the general rule, episod ic

eligibility is available to an alien who is either pregnant or

seeking "services [which] are necessary to treat an emergency

medical condition." § 409.902(2)(b), Fla. Stat. "The

eligibility of . . . a recipient [who meets all other

requirements for Medicaid eligibility except citizenship and who

is in need of emergency medical services] is limited to the

period of the emergency , in accordance with federal

regulations." § 409.904(4), Fla. Stat. (emphasis added).

10. An alien is eligible for medical assistance only if he

has an "emergency medical condition" requiring "emergency

medical services" -- and then only for those services "necessary

to treat [the] emergency medical condition" that are pro vided

during the "period of the emergency , " the conclusion of which

terminates the alien's eligibility.

11. The term "emergency medical condition" (EMC) i s

de fined in section 409.901(10)(a) as:

A medical condition manifesting itself by

acute symptoms of s ufficient severity, which

may include severe pain or other acute

symptoms, such that the absence of immediate

medical attention could reasonably be

expected to result in any of the following:

1. Serious jeopardy to the health of a

patient, including a pr egnant woman or a

fetus.

2. Serious impairment to bodily functions.

3. S erious dysfunction of any bodily organ

or part.

12. Section 409.901(11) provides the following definition

o f Ðemergency services and careÑ :

[M ]edical screening, examination, and

evaluation by a physician, or, to the extent

permitted by applicable laws, by other

appropriate personnel under the supervision

of a physician, to determine whether an

emergency medical condition exists and, if

it does, the care, treatment, or surgery for

a covered service by a physician which is

necessary to relieve or eliminate the

emergency medical condition, within the

service capability of a hospital.

13. Section 409.904(4) provides:

A low - income person who meets all other

requirements for Medicaid e ligibility except

citizenship and who is in need of emergency

medical services. The eligibility of such a

recipient is limited to the period of the

emergency, in accordance with federal

regulations.

14. Section 409.905(5) has, since 2005, consistently

p rovided that AHCA shall pay for Ðall covered services provided

for the medical care and treatment of a recipientÑ admitted as

an inpatient by a licensed physician to a licensed hospital.

However, covered payments can be determined by the patientsÓ

physica l condition.

15. AHCA is authorized to Ðconduct or cause to be

conducted . . . reviews, investigation, analyses, audits, or any

combination thereof, to determine possible fraud, abuse,

overpayment, . . . in the Medicaid program and shall report the

findin gs of any overpayments i n audit reports as appropriate

. . . . Medical necessity determination requires that service

be consistent with symptoms or confirmed diagnosis of illness or

injury under treatment and not in excess of the patientÓs

needs. Ñ § 409 .913(2) , Fla. Stat.

16. Section 409.913(1)(e) defines ÐoverpaymentÑ to mean

Ðany 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 practic es , fraud,

abuse, or mistake.Ñ

17. As found in section 409.913(1)(a)1 , ÐabuseÑ means

Ð[p]rovider practices that are inconsistent with generally

accepted business or medical practices and that result in an

unnecessary cost to the Medicaid program or in reimb ursement for

goods or services that are not medically necessary or that fail

to meet professionally recognized standards of health care.Ñ

18. Further, under section 409 .913( 5), a Medicaid provider

Ðis subject to having goods and services that are paid for by

the Medicaid program reviewed by an appropriate peer - review

organization designated by the agency. The written findings of

the applicable peer - review organization are admissible in any

court or administrative proceeding as evidence of medical

necessit y or the lack thereof.Ñ

19. AHCA has authority to Ðadopt any rules necessary to

comply with or administer ss. 409.901 - 409.920 and all rules

necessary to comply with federal requirements.Ñ § 409.919, Fla.

Stat.

20. Florida Administrative Code Rule 59G - 4. 160 provides

that all enrolled hospital providers must comply with the

provisions of the Florida Medicaid Hospital Services Coverage

and Limitations Handboo k. As found on page 2 through 7 of this

handbook:

The Medicaid Hospital Services Program

reimburses for emergency services provided

to aliens who meet all Medicaid eligibility

requirements except for citizenship or alien

status.

Eligibility can be authorized only for the

duration of the emergency. Medicaid

will not pay for continuous or episodic

servi ces after the emergency has been

alleviated . Dialysis is considered an

emergency service. [E mphasis adde d].

21. Rule 59G - 5.020 provided for the use of the Florida

Medicaid Provide r Handbook. O n page 3 through 22 under the

heading, ÐEmergency: Medicai d for Aliens , Ñ it provides:

Eligibility can be authorized only for the

duration of the emergency. Medicaid will

not pay for continuous or episodic services

after the emergency has been alleviated.

All claims must be accompanied by

documentation of the em ergency nature of the

service. Exceptions are labor, delivery,

and dialysis services. These are considered

emergencies and are payable without

documentation when the emergency indicator

is entered on the claim form. [E mphasis

added ].

CURRENT DEVELOPME NTS

22. In 2009, the Department of Health and Human Services,

Centers for Medicare and Medicaid Services (CMS) , conducted a

ÐReview of FloridaÓs Medicaid Payments for Emergency Services to

Undocumented AliensÑ (review). The review was directed to AHCA

fo r the purpose of determining Ðwhether AHCAÓs billing for

emergency medical services to undocumented aliens in the State

of Florida complies with applicable Federal statutes and CMSÓ

regulations.Ñ One of the review Ós findings was that ÐAHCA is

claiming FFP for emergency medical services to undocumented

aliens provided beyond what Federal statutes and regulations

define to be an emergency.Ñ CMS recommended that ÐAHCA should

review all emergency services for undocumented alien amounts

claimed for FFP during Federal Fiscal Years 2005, 2006 , and 2007

and re - determine allowability of these claims utilizing the

required Federal criteriaÑ and that AHCA Ðpromptly implement the

necessary system edits so that services provided as emergent

care [could] be differentiat ed from services provided after the

point the patients are stable, and then bill to the proper

Federal programs.Ñ

23. In September 2010, the Department of Health and Human

Services, Office of Inspector General , published its ÐReview of

Medicaid Funding fo r Emergency Services Provided to Nonqualified

AliensÑ (report). The report described existing internal

controls at AHCA that needed to be improved in order to assure

that Ðall claims for services provided to undocumented aliens

are for conditions that the State agency defines as emergency

services.Ñ

24. RN Ryder explained that AHCAÓs internal controls,

mainly the computer program, prevented the reviewers from

adjusting a claimÓs length of stay to the point where the

emergency condition had been alleviated . Rather, the computer

would only allow for the approval or denial of a claim. AHCAÓs

response to the report provided:

The AgencyÓs contracted quality improvement

organization began reviewing all requests

for Medicaid reimbursement of inpatient

emergenc y services for undocumented aliens

on July 1, 2010. These reviews determine

the point at which the emergency no longer

exists, consistent with federal regulations

and deny Medicaid reimbursement for the

remainder of the inpatient stay.

The Agency is also undertaking a

retrospective review of all inpatient alien

claims from July 2005 through June 30, 2010 ,

to determine point of stabilization. Any

payments made in error will be recouped, and

the federal share will be adjusted on the

Form CMS - 64. The retro spective reviews will

begin October 1, 2010.

25. In August 2012, health care providers, including Lee

Memorial, filed a Petition for Determination of Invalidity of

Non - Rule Policy. This rule challenge, known as Bayfront I,

ended with the December 12, 20 12 , Final Order that AHCAÓs use of

Ðthe Òpoint of stabilizationÓ standard was an interpretation or

an implementation of the existing statutes and rules and not

merely a restatement of them.Ñ As such, AHCA discontinued

reliance on the Ðstabilization standa rd.Ñ

26. In October 2014, health care providers, including Lee

Memorial, filed a second Petition for Determination of

Invalidity of Non - Rule Policy or In the Alternative for

Determination of the Invalidity of a Rule. This rule challenge,

known as Bayfron t II, ended with the April 20, 2015 , Final

Order 5/ that AHCA, having provided notice that it was going to

start enforcing it statutes and rules, did not change Ðan

interpretation or way of applying a statute or its rules. It is

just starting to enforce th em, as they are written, after years

of neglecting to enforce them.Ñ See Bayfront Med . Ctr . , et al.

v. AHCA , Case No. 14 - 4758 , FO at 69 (Fla. DOAH Apr. 20, 2015).

PROCESS

27. One method the Agency uses to discover Medicaid

overpayments is by auditing bil ling and payment records of

Medicaid providers. Such audits are performed by staff in the

Agency's MPI. MPI is responsible for reviewing providers to

assure that paid claims for services rendered were in accordance

with the applicable rules, regulations and handbook(s). MPI

looks to ensure that the provider is enrolled, the recipient is

eligible, the service billed is covered, and the service is

billed appropriately.

28. As an example: An alien is in need of medical care,

emergent or otherwise. The al ien applies through DCF to become

eligible for medical ser vices, and is deemed eligible. An EMC

arises, and the alien immediately presents to a duly enrolled

Medicaid Provider, a health care facility of some type. 6/ The

alien is admitted as an inpatient on day one, and emergency

health care services are provided. The EMC is alleviated as of

day three, yet the alien remains in the health care facility for

ten more days, receiving medical services, but not of the

emergent type. The alien is discharged fro m the facility on day

13 . The facility bills the Medicaid program for 13 days of

service. It is not uncommon for the alienÓs eligibility to be

determined after the hospitalization has ended, and the provider

is seeking to cover its costs.

P EER R EVIEW

29. When a claim was presented for peer review, the peer

reviewers were directed to base the review on the standards

governing emergency Medicaid for Aliens under state and federal

laws, rules, and regulations. The peer reviewers had three

issues to determi ne: whether an EMC existed, the length or

duration of the emergency services (when the EMC was

alleviated) , and whether there were sufficient medical

documentation/records to perform a medical review of the

rendered services.

30. The peer reviewers were all Florida - l icensed

physicians, either allopathic or osteopathic, who were matched

by specialty or subspecialty to the claims they were reviewing.

Each physician testified as to his or her medical or osteopathic

education, background and training. Peti tioner offered each

physician as an expert, and each was accepted as such. The

physicians were trained by their peer review organization on the

statutes and rules regarding emergency Medicaid for aliens.

The physicians then applied the standards contai ned in the

statutes and rules with their education, training and experience

to determine whether an EMC existed, the date on which the EMC

was alleviated, and whether there were sufficient medical

records upon which to make those determinations.

SPECIFIC C LAIMS TO DOAH CASE N O. 14 - 4171

31. Adam Berko, D.O, a Board - certified family practitioner

(a/k/a general practitioner), credibly testified regarding the

following claim: Claim (Patient) 3, an 18 - year - old male ,

presented to Lee MemorialÓs emergency room o n December 5, 2006 ,

complaining of shortness of breath, chest pain, body aches and

abdominal pain. He was diagnosed with acute renal failure and

leukocytosis with bandermia. Patient 3 was discharged from the

hospital on December 14, 2006. Dr. Berko cred ibly testified

that Patient 3Ós EMC had been all eviated as of December 9, 2006.

32. Mark Kanarek, M.D., a Board - certified pediatric

physician credibly testified regarding the following claim s :

a. Claim (P atient) 4, an 11 - year - old female , presented to

Lee MemorialÓs emergency room on December 6, 2006, with

abdominal pain and emesis (vomiting). It was medically

necessary to admit Patient 4. An x - ray was taken which showed a

subacute intestinal obstruction secondary to adhesions. A

follow - up x - ray on Dece mber 7, showed there was a resolution of

the small bo wel distention. By December 8 , Patient 4 was having

regular bowel movements, which signified no further obstruction.

She remained in the h ospital until December 10, 2016; however,

when Patient 4Ós bowe l obstruction was alleviated on the 8th,

the EMC was alleviated.

b. Claim (Patient) 21, a four - year - old male with DownÓs

syndrome presented to Lee MemorialÓs emergency room on July 18,

2006, with a fever following a diagnosis of leukemia. It was an

emerg ent condition for which hospitalization was necessary.

Patient 21 continued to have fever spikes through July 23, 2006,

which placed the chi ld at a continued risk for life - threatening

sepsis. The blood cultures returned as n egative and the child

was feve r - free. Patient 21 remained in the hospital until

July 26, 2006, however when the patientÓs fever broke , on the

23rd , and the blood cultures returned as negative, the EMC was

alleviated.

33. Michael Phillips , M.D., a Board - certified internist

credibly t estified regarding the following claims:

a. Claim (Patient) 5, an 86 - year - old female, presented to

Lee MemorialÓs emergency room on April 11, 2006, with nausea,

vomiting and dehydration. Given Patient 5Ós age and condition,

it was medically necessary to admit her. Patient 5 received

IV fluids, which were stopped on April 12, 2006. As such, on

April 12, Patient 5Ós EMC was alleviated, and she was discharged

on April 13, 2006.

b. Claim (Patient) 8, a 31 - year - old male presented to Lee

MemorialÓs emergenc y room on October 6, 2006, complaining of

weakness and dizziness since that morning. Patient 8 was found

to have new onset diabetes, after having lost approximately 47

pounds in the preceding four or five months. The admitting

diagnosis was Ðsyncope and collapse,Ñ but without mention of a

loss of consciousness. There was discussion regarding the signs

of the significant weight loss. Patient 8 was discharged on

October 12, following his receipt of insulin , 7/ oral

hypoglycemics 8/ and education for his dia betic condition.

Patient 8 had Ða chronic medical condition that required

treatment, but again, it wasnÓt something that required

immediate emergency care.Ñ There was no EMC.

c . Claim (Patient) 11, a 26 - year - old male with a history

of testicular cancer, presented to Lee MemorialÓs emergency room

on August 29, 2006, for his fifth cycle of chemotherapy.

Patient 11 was admitted to a regular nursing floor for his

scheduled chemotherapy treatment. Patient 11 was discharged on

September 4, 2006. Patient 11 did not have an EMC nor did he

receive any emergency services; rather, he had a scheduled

medical treatment.

d . Claim (Patient) 27, a 43 - year - old female presented to

Lee MemorialÓs emergency room on July 9, 2006 , with complaints

of nausea, vomiting, diarr hea and chills. She had a two - month

history of abdominal pain, nausea, vomiting, and diarrhea, and

was diagnosed as having colitis. Patient 27 was admitted to Lee

Memorial, had an abdominal scan and was treated with IV

infusions. She did not require imm ediate surgery or any

emergency services during the admission. Patient 27 did not

receive any emergency services. She was discharged on

September 4, 2006.

34. Steve Beiser, M.D. , a Board - certified i nternist

credibly testified regarding the following c laim:

a. Claim (Patient) 13, a 28 - year - old male was admitted to

Lee Memorial on October 9, 2006 , for an elective surgery.

Patient 13 underwent an anterior mediastinal germ cell tumor

resection and was discharged on October 14, 2006. Patient 13

did not r eceive any emergency services.

35. Bruce Shephard, M.D., a Board - certified obstetrician

and gynecologist , credibly testified regarding the following

claim: Claim (Patient) 18, a 23 Î year - old female, presented to

Lee MemorialÓs emergency room on March 3, 2006 , with complaints

of being unable to void or have a bowel movement, abdominal

pain, and pelvic pain. She was admitted on March 3, and her EMC

presented on March 8, when she underwent surgery. Patient 13

was discharged on March 9. The EMC was allevia ted on March 8,

2006.

SPECIFIC CLAIMS TO D OAH CASE NO. 15 - 3271

36. Dr. Berko credibly testified regarding the following

claim:

a. Claim (Patient) 7, a 52 - year - old male , presented to Lee

MemorialÓs emergency room on November 30, 2007, with complaints

of e pigastric pain, anemia and alcohol abuse. During his

December 1, 2015 , dep osition (PetitionerÓs E xhibit 21),

Dr. Berko testified there was insufficient documentation to

properly review the claim. At the hearing, the parties agreed

that Respondent was ab le to provide the medical records.

Dr. Berko was able to review the material and render his opinion

via a January 23, 2016 , Case Detail Report (CDR). Although

Respondent did not object to the admi ssion of PetitionerÓs

Exhibit 66 , the CDR which contained Dr. BerkoÓs peer review is

hearsay. There was no direct credible testimony regarding

Patient 7, and no finding of fact is made with respect to

Patient 7.

37. Dr. Kanarek credibly testified regarding the following

claims:

a. Claim (Patient) 4, an eigh t - year - old female, presented

to Lee Memorial with bone pain, fever and a refusal to walk on

December 26, 2007. During his January 11, 2016 , deposition

(PetitionerÓs Exhibit 19), Dr. Kanarek testified that there was

insufficient documentation to properly r eview the claim. At the

hearing, the parties agreed that Respondent was able to provide

the medical records and Dr. Kanarek was able to review the

material and render his opinion via a January 21, 2016 , CDR.

Although Respondent did not object to the admi ssion of

PetitionerÓs Exhibit 65, the CDR which contained Dr. KanarekÓs

peer review is hearsay. There was no direct credible testimony

regarding Patient 4, and no finding of fact is made with respect

to Patient 4.

b. Claim (Patient) 12, a 17 - year - old ma le , was admitted to

Lee Memorial on January 17, 2007 , for a mediport placement, bone

marrow biopsy on January 18, and the initiation of chemotherapy.

(Patient 12 had been diagnosed with undifferentiated sarcoma

with metastasis to the lungs.) There was no EMC for Patient 12,

but rather a planned hospitalization for his cancer treatment.

Following his chemotherapy, Patient 12 was discharged on

January 22, 2007.

c. Claim (Patient) 24, a six - year - old DownÓs syndrome male

with leukemia, was admitted to Lee Memorial on October 11, 2007 ,

with fever and pancytopenia. He was discharged on October 15,

2007, after he had been fever - free for 48 hours on October 14.

Dr. Kanarek determined that Patient 24Ós EMC was alleviated on

October 14.

d . Claim (Patient) 27, a two - year - old male , was presented

to Lee MemorialÓs emergency room on August 5, 2007 , following a

near drowning event which required cardiopulmonary

resuscitation. During his January 11, 2016 , deposition

(PetitionerÓs Exhibit 19), Dr. Kanarek testified th at there was

insufficient documentation to properly review the claim. At the

hearing, the parties stipulated that Respondent was able to

provide the medical records. Dr. Kanarek was able to review the

material and render his opinion via a January 21, 201 6 , CDR.

Although Respondent did not object to the admi ssion of

PetitionerÓs Exhibit 67 , the CDR which contained Dr. KanarekÓs

peer review is hearsay. There was no direct credible testimony

regarding Patient 27, and no finding of fact is made with

respect to Patient 27.

e. Claim (Patient) 40, a seven - year - old male , presented to

Lee MemorialÓs emergency room on November 26, 2007 , with a one -

week history of left - sided facial swelling, following a tooth

extraction. Although the child had been given oral ant ibiotics

following the tooth extraction , that course of treatment failed,

and his facial swelling and pain increased. When hospitalized ,

P atient 40 was started on IV antibiotics, and by November 28,

2007, his blood culture was negative, he remained afebri le, and

his facial swelling had subsided. The EMC was alleviated on

November 28, 2007. Patient 40 was d ischarged on December 10,

2007.

f. Claim (Patient) 44, a 13 - year - old male , presented to

Lee MemorialÓs emergency room on August 13, 2007 , with a two a nd

one - half month history of weight loss, increased thirst and

urination , and a blood glucose of 534. He was admitted to the

hospital, given IV normal saline bolus, started on insulin , and

received diabetic instruction. Patient 44 did not present with

an EMC ; he presented with new onset diabetes. Dr. Kanarek

credibly testified that Patient 44 never exhibited any signs of

diabetic ketoacidosis, an immine ntly life - threatening condition,

and he never required intensive or emergent care. Patient 44

was disc harged on August 17, 2007.

38. Thomas Wells, M.D., a Board - certified surgeon and

family practitioner , who engages in emergency medicine, family

practice and surgery , credibly testified regarding the following

claims:

a. Claim (Patient) 6, a 26 - year - old f emale , was admitted

to Lee Memorial on May 14, 2007 , for a scheduled gastric cancer

surgery. This patient had a medical condition, but there was no

evidence that she presented with an EMC . Patient 6 was

discharged on May 21, 2007.

b. Claim (Patient) 46, a 20 - year - old male , presented to

Lee MemorialÓs emergency room on June 10, 2007 , following a

motor vehicle crash. Patient 46 was admitted to the hospital

with a traumatic brain injury, bilateral chest trauma, blunt

abdominal trauma with liver injury, and multiple bone fractures

complicated by cocaine use. His hospital stay was complicated

by the surgically repaired wounds open ing , and he required

additional surgeries. By July 2, 2007, Patient 46Ós cardi ology

workup was completed, his arrhythmia was reso lved, his abdominal

wound was improving , and he was tolerating food by mouth.

Dr. Wells determined that his EMC was alleviated by July 2.

Patient 46 was discharged from the hospital on July 7, 2007.

c . Claim (Patient) 50, a 33 - year - old male , presented to

Lee MemorialÓs emergency room on July 13, 2007 , with upper

quadrant abdominal pain radiating to his back. Patient 50 was

admitted and underwent testing protocol. By July 20, 2007,

Patient 50Ós white blood count had improved, his temperature was

improv ed and his condition was no longer emergent. Dr. Wells

determined that the EMC was alleviated on July 20, 2007.

Patient 50 was discharged from the hospital on July 21, 2007.

39. Dr. Beiser credibly testified regarding the following

claims:

a. Claim (Pa tient) 9, a 54 - year - old male , presented to Lee

MemorialÓs emergency room and was admitted on September 4, 2007.

Prior to the admission, Patient 9 had been non - compliant with

his health care providerÓs instructions, and he was told to Ðgo

to the ER.Ñ Alth ough he came in through the emergency

department, there was no EMC to address, or to be alleviated.

Rather, Patient 9 was a non - compliant patient who needed to

comply with his physicianÓs directions. Patient 54 was

discharged on September 8, 2007.

b. Cl aim (Patient) 11, a 33 - year - old female , presented to

Lee MemorialÓs emergency room on April 6, 2007 , with a recurrent

deep vein thrombosis of her left lower extremity. Her condition

was an EMC, and she was admitted. Her physician promptly

administered an ticoagulation medication and her condition

improved, so much so that she was walking well and without chest

pain or shortness of breath the following day, April 7. She was

discharged on April 9, 2007. Dr. Beiser determined her EMC was

alleviated on April 8, 2007.

c. Claim (P atient) 15, a 35 Î year - old male , presented to

Lee MemorialÓs emergency room on April 7, 2007 , following a

motor vehicle accident involving alcohol intoxication. Patient

15 had a left ankle contusion and a closed head injury, which on

imaging identified a large brain mass. The mass was determined

to be a cyst and no emergent intervention was indicated. The

following day, April 8, Patient 15 was alert and oriented with

no apparent alcohol withdrawal symptoms. Dr. Beiser determined

tha t his EMC was alleviated on April 8, 2007.

d. Claims 17 and 18 involve the same patient over two

different hospita lizations. Patient 17/18, a 51 Î year - old

female , presented to Lee MemorialÓs emergency room on

September 5, 2007 , with complaint of abdomina l pain after

gastric bypass surgery. She was admitted to the hospital and

noted to have ascites, ja undice and diabetes. Patient 17/18

was found to have liver failure and bacterial peritonitis.

Dr. Beiser determined that the EMC was alleviated by

Sept ember 11, when Patient 17 /18 Ós abdominal pain had resolved

and there was significant improvement in her overall condition.

e. On October 13, Patient 17/ 18 again present ed to Lee

Memorial with complaints of abdominal pain for four days Ó

duration. She was known to have sever e liver disease. Her

abdominal pain was suspected to be bacterial peritonitis and

this EMC was treated. By October 15, Patient 17 /18 was found to

be afebrile with no abdominal tenderness. Dr. Beiser determined

that the EMC was allevia ted on October 15, and the patient was

discharged on October 21, 2007.

f. Claim (P atient) 31, a 25 - year - ol d male with a history

of meningitis, neurosyphilis and underlying human

immunodeficiency virus (HIV), presented to Lee MemorialÓs

emergency room on J une 14, 2007 , with an acute febrile illness

and neck mass. He was admitted to the hospital and started on

IV antibiotics , and a neck biopsy was performed. Patient 31 had

a complicated hospital stay as he had persistent fevers,

headaches, episodes of hypo tension, and sepsis. Through

treatment , his condition improved and he was discharged on

July 3, 2007. Dr. Beiser determined that the EMC was alleviated

on June 27, 2007.

g. Claims 33 and 34 involve the same patient over two

different hospitali zations. Patient 33/34 is a 67 - year - old

female who presented to Lee MemorialÓs emergency room on May 21,

2007, with an active gastrointestinal bleed and blood loss

anemia. She underwent blood transfusions and the anemia was

alleviated by May 22. Patient 33 /34 wa s discharged on May 23,

2007. Dr. Beiser determined that the EMC was alleviated on

May 22, 2007.

h. Patient 33/ 34 presented to Lee Memorial on July 5,

2007, with an active gastrointestinal bleed and blood loss

anemia. Patient 33/ 34 underwent blood tran sfusions and the

anemia was alleviated on July 6. Patient 33/ 34 refused any

further medical procedures, and she was discharged on July 8,

2007. Dr. Beiser determined that the EMC was alleviated on

July 6, 2007.

i. Claim (P atient) 37, a 27 Î year - old fema le , presented to

Lee MemorialÓ s emergency room on October 12, 2007 , with

complaints of severe abdominal pain. On October 14, her

condition was Ðimproved , Ñ and she denied any abdominal pain,

nausea or vomiting. Dr. Beiser determined her EMC was

alleviated on October 14. Patient 37 was discharged on

October 15, 2007.

j. Claim (P atient) 38, a 32 - year - old male , presented to

Lee MemorialÓs emergency room on September 28, 2007 , with

complaints of excessive thirst and urination, with some slight

weight loss a nd weakness. He was admitted to the hospital for

uncontrolled diabetes. Although Dr. Beiser determined that

uncontrolled diabetes is not an EMC, Patient 38Ós records

demonstrated that he had diabetic ketoacidosis, which is an EMC.

With insulin, Patient 38Ós EMC was alleviated on September 29,

2007. He was discharged on October 1, 2007.

k. Claim (P atient) 49, a 33 - year - old male , presented to

Lee MemorialÓs emergency room on April 30, 2007 , with complaints

of right mid - lower quadrant abdominal pain with nausea, vomiting

and diarrhea for two days prior to presentation. Patient 49 was

admitted to rule out appendicitis. Patient 49 was taken to

surgery on May 2, 2007 , where an appendectomy was successfully

performed. He had an uneventful recovery, and Dr. Beiser

determined that the EMC was alleviated on May 2, 2007. Patient

49 was discharged on May 4, 2007.

40. Dr. Shephard credibly testified regarding the

following claim:

a. Claim (P atient) 36, an 18 - year Î old female , presented

to, and was admitted to Le e Memorial on July 14, 2007 , at 31

weeks gestation with a heart condition and mild pre - eclampsia.

Her medical condition bec ame emergent on July 26 , when she

experienced congestive heart failure and decreased oxygen

levels. She was transferred to the inte nsive care unit , and she

delivered by emergency C - section on July 28, 2007. Patient 36

was extubated on July 29, and her cardiopulmonary status

continued to improve. She was discharged on August 3, 2007.

Dr. Shephard determined that Patient 36Ós EMC sta rted on July 26

and wa s alleviated on August 2, 2007.

RECOUPMENT OF MEDICA ID OVERPAYMENTS

41. Based upon the foregoing findings, and the persuasive

weight of the evidence presented by the parties, it is

determined:

A. As to Patient 3, EMC was not require d for this patient

subsequent to December 9, 2006;

B. As to Patient 4, EMC was not required for this patient

subsequent to December 8, 2006;

C. As to Patient 21, EMC was not required for this patient

subsequent to July 25, 2006;

D. As to Patient 5, EMC was not required for this patient

subsequent to April 12, 2006;

E. As to Patient 8, none of this patientÓs care was

required as emergency medical care;

F. As to Patient 11, none of this patientÓs care was

required as emergency medical care;

G. As to Pa tient 27, none of this patientÓs care was

required as emergency medical care;

H. As to Patient 13, none of this patientÓs care was

required as emergency medical care;

I. As to Patient 18, although admitted on March 3, 2006,

the EMC presented on March 8, and Patient 13 was discharged on

March 9, 2006;

(The following patients were seen in 2007.)

J. As to Patient 7, no finding of fact was made with

respect to the care provided;

K. As to Patient 4, no finding of fact was made with

respect to the care provid ed;

L. As to Patient 12, none of this patientÓs care was

required as emergency medical care;

M. As to Patient 24, emergency medical care was not

required for this patient subsequent to October 14, 2007;

N. As to Patient 27, no finding of fact was made w ith

respect to the care provided;

O. As to Patient 40, emergency medical care was not

required for this patient subsequent to November 28, 2007;

P. As to Patient 44, none of this patientÓs care was

required as emergency medical care;

Q. As to Patient 6, none of this patientÓs care was

required as emergency medical care;

R. As to Patient 46, emergency medical care was not

required for this patient subsequent to July 2, 2007;

S. As to Patient 50, emergency medical care was not

required for this patient subsequent to July 20, 2007;

T. As to Patient 11, emergency medical care was not

required for this patient subsequent to April 8, 2007;

U. As to Patient 15, emergency medical care was not

required for this patient subsequent to April 9, 2007;

V. As to P atient 17, emergency medical care was not

required for this patient subsequent to September 11, 2007;

W. As to Patient 18, emergency medical care was not

required for this patient subsequent to October 15, 2007;

X. As to Patient 33, emergency medical car e was not

required for this patient subsequent to May 22, 2007;

Y. As to Patient 34, emergency medical care was not

required for this patient subsequent to July 6, 2007;

Z. As to Patient 37, emergency medical care was not

required for this patient subseq uent to October 14, 2007;

AA. As to Patient 38, emergency medical care was not

required for this patient subsequent to September 29, 2007;

BB. As to Patient 49, emergency medical care was not

required for this patient subsequent to May 2, 2007;

CC. As t o Patient 36, emergency medical care was not

required for this patient subsequent to August 2, 2007.

42. With respect to both DOAH case numbers, Respondent

offered no testimony or evidence to dispute or rebut the

testimony o n any of the claims presented a bove. Each expert

credibly testified as to when each EMC presented and the date on

which each EMC was alleviated. The experts provided the

requisite support to both the AFAR and FAR.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jur isdiction over the parties and subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

409.913(31), Florida Statutes.

44. The burden of proof is on the Agency to prove the

material allegations by a preponderance of the evidence.

S . Med. Servs., Inc. v. Ag. for Health Care Admin , 653 So. 2d

440 (Fla. 3d DCA 1995); Southpoint Pharmacy v. DepÓt of HRS , 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. DepÓt of Banking & Fin. v.

Osborne Stern & Co. , 67 0 So. 2d 932, 935 (Fla. 1996).

45. Section 409.902 provides in pertinent part:

(1) The Agency for Health Care

Administration is designated as the single

state agency authorized to ma ke payments for

medical assistance and related services

under Title XIX of the Social Security Act.

These payments shall be made, subject to any

limitations or directions provided for in

the General Appropriations Act, only for

services included in the pr ogram, shall be

made only on behalf of eligible individuals,

and shall be made only to qualified

providers in accordance with federal

requirements for Title XIX of the Social

Security Act and the provisions of state

law. This program of medical assistance is

designated the ÐMedicaid program.Ñ The

Department of Children and Families is

responsible for Medicaid eligibility

determinations, including, but not limited

to, policy, rules, and the agreement with

the Social Security Administration for

Medicaid eli gibility determinations for

Supplemental Security Income recipients, as

well as the actual determination of

eligibility. As a condition of Medicaid

eligibility, subject to federal approval,

the Agency for Health Care Administration

and the Department of C hildren and Families

shall ensure that each recipient of Medicaid

consents to the release of her or his

medical records to the Agency for Health

Care Administration and the Medicaid Fraud

Control Unit of the Department of Legal

Affairs.

(2) Eligibility i s restricted to United

States citizens and to lawfully admitted

noncitizens who meet the criteria provided

in s. 414.095(3).

(a) Citizenship or immigration status must

be verified. For noncitizens, this includes

verification of the validity of documents

with the United States Citizenship and

Immigration Services using the federal SAVE

verification process.

(b) State funds may not be used to provide

medical services to individuals who do not

meet the requirements of this subsection

unless the services a re necessary to treat

an emergency medical condition or are for

pregnant women. Such services are

authorized only to the extent provided under

federal law and in accordance with federal

regulations as provided in 42 C.F.R.

s. 440.255.

(3) To the extent that funds are

appropriated, the department shall

collaborate with the Agency for Health Care

Administration to develop an Internet - based

system that is modular, interoperable, and

scalable for eligibility determination for

Medicaid and the ChildrenÓs Hea lth Insurance

Program (CHIP) that complies with all

applicable federal and state laws and

requirements.

46 . To meet its burden of proof, the Agency may rely on

the audit records and report. Sections 409.913(21) and (22)

provide:

(21) When making a dete rmination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider showing the calculation of

overpayments. The agencyÓs determination

must be based solely upon information

available to it before issuance of the audit

report and, in the case of documentation

obtained to substantiate claims for Medicaid

reimbursement, based solely upon

contemporaneous records. The agency may

consider addenda or modifications to a note

that was made contemporaneously with the

pati ent care episode if the addenda or

modifications are germane to the note.

(22) The audit report, supported by agency

work papers, showing an overpayment to a

provider constitutes evidence of the

overpayment. A provider may not present or

elicit testimon y on direct examination or

cross - examination in any court or

administrative proceeding, regarding the

purchase or acquisition by any means of

drugs, goods, or supplies; sales or

divestment by any means of drugs, goods, or

supplies; or inventory of drugs, g oods, or

supplies, unless such acquisition, sales,

divestment, or inventory is documented by

written invoices, written inventory records,

or other competent written documentary

evidence maintained in the normal course of

the providerÓs business. A provide r may not

present records to contest an overpayment or

sanction unless such records are

contemporaneous and, if requested during the

audit process, were furnished to the agency

or its agent upon request. This limitation

does not apply to Medicaid cost rep ort

audits. This limitation does not preclude

consideration by the agency of addenda or

modifications to a note if the addenda or

modifications are made before notification

of the audit, the addenda or modifications

are germane to the note, and the note w as

made contemporaneously with a patient care

episode. Notwithstanding the applicable

rules of discovery, all documentation to be

offered as evidence at an administrative

hearing on a Medicaid overpayment or an

administrative sanction must be exchanged by

all parties at least 14 days before the

administrative hearing or be excluded from

consideration.

47 . The term ÐoverpaymentÑ is defined as Ðany amount that

is not authorized to be paid by the Medicaid program, whether

paid as a result of inaccurate or i mproper cost reporting,

improper claiming, unacceptable practices, fraud, abuse , or

mistake.Ñ § 409.913(1)(e), Fla. Stat.

48 . A claim presented under the Medicaid program imposes

on the provider an affirmative duty to be responsible for and to

assure that each claim is true and accurate and that the service

for which payment is claimed has been provided to the Medicaid

recipient prior to the submission of the claim. § 409.913(7),

Fla. Stat.

49 . The Agency is the state agency designated to

administer the Medicaid p rogram in accordance with federal and

Florida law. Further, the Agency is required to conduct, or

cause to be conducted by contract or otherwise, reviews,

investigations, analyses, audits, or any combination thereof, to

determine possible fr aud, abuse, overpayment, or recipient

neglect in the Medicaid program and to report the findings of

any overpayments in audit reports as appro priate, section

409.913(2), and to prepare and issue audit reports document ing

overpaymen ts, section 409.913(21) . Respondent's assertion that

AHCA does not have authority to recoup any overpayment because

the claims had prior authorization is misplaced.

50 . The AFAR issued in DOAH Case No. 14 - 4171 and FAR

issued in DOAH Case No. 15 - 3271 support and constitute evide nce

of the overpayments claimed. In light of the totality of all

the evidence presented in this case, AHCA should recover the

overpayment as modified herein.

51 . The assertion that administrative finality estops the

Agency from reviewing Medicaid claims is misplaced. Section

409.913 clearly provides that AHCA is to Ðrecover overpayments

and impose sanctions as appropriateÑ and to provide detailed

reports to the Legislature on its actions. The only way to

determine whether such overpayment has occurred i s to review the

claims once submitted. The administrative process then allows

the provider the hearing which has been conducted.

52 . DCF is the entity that determines an alienÓs

eligibility. The testimony and statutory authority clearly

establishes th at DCF does not have the medical expertise to

determine the duration of an emergency medical condition. As

such, placing DCF in a position to determine the duration is

inappropriate.

53 . The Agency met its prima facie burden to establish the

overpayment. The overpayments have been d etermined through

PetitionerÓs e xhib its and the testimony presented.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Administration enter a f inal o rder sustaining the Medicaid

overpayment in DOAH Case No. 14 - 4171 as $57,337.71, plus

sanctions of $2 , 500, and costs of $2,062.04. With respect to

DOAH Case No. 15 - 3271, the amount due should be recalculated

based on only those claims that were found to be overpayments , 9/

and costs of $3,528.41. Based on the oral stipulation announced

at the hearing (found on Transcript , page 106), AHCA Ðremove[d]

the claim for s anctions as to the 2007 case [s] .Ñ

DONE AND ENTERED this 2 7 th day of April, 2016, in

Tallahas see, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 7 th day of April, 2016

ENDNOTE S

1/ On July 30, 2014, Respondent filed a Motion to Reopen

Proceedings (DOAH Case No. 12 - 2929) and Consolidate with DO AH

Case No. 12 - 3596. DOAH Case No . 12 - 2929 was reopened on

September 9, 2014, and assigned DOAH Case No. 14 - 4171; however,

the request to consolidate was denied. On September 15, 2014,

AHCA filed a Motion for Leave to Amend Final Audit Report, which

was granted. Respondent was allowed to file an Amended Petition

to the AFAR.

2/ The alleged overpayment amount was reduced by $31,831.83,

from the original FAR amount of $94,399.82.

3/ R espondentÓs PRO exceeded the 40 - page limit established in

Florida Adm inistrative Code Rule 28 - 106.215.

4 / Section 414.095(3):

(3) ELIGIBILITY FOR NONCITIZENS. A

Ðqualified noncitizenÑ is an individual who

is admitted to the United States as a

refugee under s. 207 of the Immigration and

Nationality Act or who is grant ed asylum

under s. 208 of the Immigration and

Nationality Act; a noncitizen whose

deportation is withheld under s. 243(h) or

s. 241(b)(3) of the Immigration and

Nationality Act; a noncitizen who is paroled

into the United States under s. 212(d)(5) of

the I mmigration and Nationality Act, for at

least 1 year; a noncitizen who is granted

conditional entry pursuant to s. 203(a)(7)

of the Immigration and Nationality Act as in

effect prior to April 1, 1980; a Cuban or

Haitian entrant; or a noncitizen who has

been admitted as a permanent resident. In

addition, a Ðqualified noncitizenÑ includes

an individual who, or an individual whose

child or parent, has been battered or

subject to extreme cruelty in the United

States by a spouse, a parent, or other

household mem ber under certain

circumstances, and has applied for or

received protection under the federal

Violence Against Women Act of 1994, Pub. L.

No. 103 - 322, if the need for benefits is

related to the abuse and the batterer no

longer lives in the household. A

Ðn onqualified noncitizenÑ is a nonimmigrant

noncitizen, including a tourist, business

visitor, foreign student, exchange visitor,

temporary worker, or diplomat. In addition,

a Ðnonqualified noncitizenÑ includes an

individual paroled into the United States

f or less than 1 year. A qualified

noncitizen who is otherwise eligible may

receive temporary cash assistance to the

extent permitted by federal law. The income

or resources of a sponsor and the sponsorÓs

spouse shall be included in determining

eligibility to the maximum extent permitted

by federal law.

(a) A child who is a qualified noncitizen

or who was born in the United States to an

illegal or ineligible noncitizen is eligible

for temporary cash assistance under this

chapter if the family meets all el igibility

requirements.

(b) If the parent may legally work in this

country, the parent must participate in the

work activity requirements provided in

s. 445.024 , to the extent permitted under

federal law.

(c) The department shall participate in the

Sy stematic Alien Verification for

Entitlements Program (SAVE) established by

the United States Bureau of Citizenship and

Immigration Services in order to verify the

validity of documents provided by

noncitizens and to verify a noncitizenÓs

eligibility.

(d) The income of an illegal noncitizen or

ineligible noncitizen who is a mandatory

member of a family, less a pro rata share

for the illegal noncitizen or ineligible

noncitizen, counts in determining a familyÓs

eligibility to participate in the program.

(e) The entire assets of an ineligible

noncitizen or a disqualified individual who

is a mandatory member of a family shall be

included in determining the familyÓs

eligibility.

5/ The Final Order is on appeal at the First District Court of

Appeal.

6/ In t he event an EMC manifests itself and the alien has not

already been deemed eligible, that application process can take

place during the hospital stay.

7/ A hormone made by the pancreas that allows your body to use

sugar from carbohydrates in food for ene rgy or to store for

future use.

8/ An anti - diabetic drug de signed to help people with type - 2

diabetes.

9/ AHCA must recalculate this amount to delete the overpayment

for claims 4, 7, and 27.

COPIES FURNISHED:

Joanne Barbara Erde, Esquire

Duane Mor ris LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Diana R. Esposito, Esquire

Office of t he Attorney General

Suite 1100

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Daniel Elden Nordby, Esquire

Shutts and Bow en LLP

Suite 804

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Donald C. Freeman, Esquire

Agency for Healthcare Administration

Office of the General Counsel

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Joseph M. Gol dstein, Esquire

Shutts and Bowen LLP

Suite 2100

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Healthcare Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Healthcare Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Co unsel

Agency for Healthcare Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 3 2308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.