17-003268MPI Agency For Health Care Administration vs. Green Cross Home Care Services Status: Closed Recommended Order on Wednesday, April 25, 2018.

Summary: Using unverified claims of 1 provider to deny claims of another does not meet requirement of 409.913(20). AHCA audit report is not prima facie evidence under 409.913(22). AHCA did not prove home health claims were for periods when patient was in hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 17 - 3268MPI

GREEN CROSS H OME CARE SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Admini strative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division) conducted the

final hearing in this matter on August 29, 2017 , and

September 25, 2017, in Tallahassee, Florida ; and on October 25,

2017, and November 6, 2017, by video teleconference with

locations in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: James B. Countess, Esquire

Alexandra M. Marshall, Esquire

Office of the General Counsel

Agency for Hea lth Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Aline LaF ortune, RN, ARNP

Green Cross Home Care Services, Inc.

15383 Northwest 7th Avenu e

Miami, Florida 33169

STATEMENT OF THE ISSUE S

A. Did Respondent, Green Cross Home Care Services (Green

Cross), submit unsupported or unauthorized claims for treatment

of Medicaid patients to Petitioner, Agency for Health Care

Administ ration (Agency), causing the Agency to overpay some

claims during the audit period, July 1, 2009, through June 30,

2013 (audit period) ?

B. If so, what amount is Green Cross required to reimburse

to the Agency?

C. If the Agency overpaid Green Cross, shoul d it assess

costs and sanctions against Green Cross; and, if so, in what

amount?

PRELIMINARY STATEMENT

The Agency sent Green Cross a letter dated May 16, 2014,

with a Preliminary Audit Report asserting that the Agency

overpaid Green Cross $30,255.14 for cl aimed services during the

audit period that were not covered by Medicaid. The Agency

attached the work papers for its claims to the report. The

Agency also provided Green Cross an opportunity to submit

information or documents disputing the claims. Late r the Agency

sent Green Cross an Amended Final Audit Report (audit report) .

The audit report asserted that the Agency overpaid Green Cross

$23,432.78. It also sought a fine of $4,686.56 and costs of

$849.01, for a total of $28,968.35.

Green Cross contes ted the claims and requested an

administrative hearing. The Agency conducted an informal

hearing. When Green Cross raised disputed issues of material

fact, the Agency hearing officer closed the case, and the Agency

referred the dispute to the Division of Administrative Hearings

(Division) on June 6, 2017.

On June 22, 2017, the Division issued a Notice of Hearing

for August 29, 2017. The undersigned convened the hearing.

Green Cross representatives did not appear. Co - owners Aline

LaFortune, R.N., and Joseph LaF ortune, M.D., called the office of

the undersigned about 15 minutes after the scheduled start time

claiming that they did not receive notice of the hearing. The

undersigned continued the hearing and rescheduled it to

September 25, 2017, in Tal lahassee, Florida.

The undersigned re - convened the h earing on that date. The

court reporter scheduled by the Agency did not appear, and the

Agency was unable to locate a substitute. The hearing was

continued again and rescheduled to be held by video

tel econference with locations in Miami and Tallahassee for

October 25, 2017. The hearing convened as scheduled. The

hearing was not completed. It was continued to November 6, 2017,

in Tallahassee, Florida. The hearing convened as scheduled.

At the hearing s, Agency Exhibits 1, 3 through 7, and 9

through 17 were accepted into evidence. Mary Canfield and Sonya

Graves testified on behalf of the Agency.

Green Cross Exhibits 1 through 3 were admitted into

evidence. Aline LaFortune, a co - owner of Green Cross, t estified

on behalf of Green Cross.

December 6, 2017, Ms. LaFortune filed a letter referring to

a 20 - day time period and a Ðunified agreement.Ñ With that letter

Ms. LaFortune filed a letter from Dr. Lafortune stating: Ð It is

with all due respect, may I retain your attention with the

opportunity given me to pr operly express my s elf as per the law

require.Ñ On December 7, 2017, Dr. and Ms. La f ortune filed a

letter that read partially like a proposed recommended order and

partially like a discussion of fact ual matters beyond the record.

It was treated as a proposed recommended order. On December 22,

2017, Dr. La f ortune , who was not the designated representative of

Green Cross, filed a letter discussing timing of orders.

The parties obtained a transcript t hat was filed January 4,

2018. On January 16, 2018, the Agency filed its proposed

recommended order. On February 6, 2018, Dr. and Ms. LaFortune

filed a document titled ÐPetitionÓs [sic] Proposed Recommended

Order.Ñ On February 27, 2018, the undersigned rendered an Order

Accepting RespondentÓs Late - Filed Proposed Recommended Order in

light of the fact that Green Cross was not represented by

counsel. The multiple untimely filings of Green Cross w aived all

deadlines created by c ha pter 120, Florida Statutes (2017) , 1/ and

Florida Administrative Code C hapter 28 - 106.

The arguments presented in the partiesÓ pleadings have been

considered in preparation of this Recommended Order. The factual

assertions of matters beyond the record have not been considered.

FIND ING S OF FACT

Participants and Process

1. This case arises from an Agency Medicaid audit of Green

Cross claims for services submitted and paid during the audit

period.

2. The Agency does not claim that Green Cross provided poor

quality of care. It also does not claim that the billings of

Green Cross are fraudulent.

3. The Florida Legislature has designated the Agency as the

single state agency authorized to make payments for medical

assistance and related services under Title XIX of the Social

Security Act (Medicaid program). The Agency oversees and

administers the Medicaid program for the State of Florida.

§ 409.913(11), Fla. Stat. (2017). 2 / The Agency investigates and

audits Medicaid providers to identify and recoup overpayments for

services render ed to Medicaid recipients and the costs of

recovery. The Legislature also empowered the Agency to impose

sanctions and fines against providers that received overpayments.

§ 409.913, Fla. Stat.

4. In the Medicaid p rogram, providers bill the Agency for

se rvices rendered and the Agency pays the bills, also called

claims. Later the Agency audits the claims. The audit includes

examination of whether the services were proper, whether the

amounts billed were correct, and whether Medicaid covers the

services p rovided. If the Agency determines that it overpaid a

provider, the Agency seeks recoupment of the funds.

5. The Medicaid program follows a process of record

collection, records analysis, provider input, and rebuttal from

the provider before reaching it s final determination of amounts

overpaid. The Agency first issues a Preliminary Audit Report to

which the provider may respond and submit rebuttal documents.

The Agency issues a Final Audit Report, sometimes amended,

stating its determination and the re asons for it. If the

provider disputes the AgencyÓs final determination, the provider

may request a formal administrative hearing.

6. Green Cross is a home health care service provider.

During the audit period, Green Cross was an enrolled Medicaid

provi der subject to the requirements of the Medicaid provider

agreement that it executed on July 11, 2000.

7. The Medicaid provider agreement is a contract between

the Agency and the provider. It requires the Medicaid provider

to comply with all state and fed eral laws establishing and

regulating the Medicaid program. This includes Medicaid Provider

General Handbooks (Handbook) that are incorp orated by reference

into rules . 3 / By executing the agreement, Green Cross agreed to

maintain medical records and make those records available to the

Agency in a systematic and orderly manner for review. The

contract required that the records be accessible, legible, and

comprehensive.

8. The Agency audited Green CrossÓs claims and Agency

payments made during the audit pe riod. The Agency used a data

program to screen for claims of Green Cross that were outliers

worthy of further examination by audit. The Agency issued a

Preliminary Audit Report stating and explaining a determination

that it had overpaid Green Cross $30,2 55.14.

9. After communications with Green Cross representatives

and consideration of additional documents, the Agency issued its

Amended Final Audit Report setting forth its determination that

it had overpaid Green Cross $23,432.78. The Amended Final Au dit

Report also asserted that Green Cross should pay a fine of

$4,686.56 and costs.

10. This proceeding followed. During the activities and

proceedings that occurred after Green Cross requested a hearing,

the Agency adjusted its claims downward. It now seeks $22,739.96

in over payments and $4,547.99 in sanctions, as well as costs.

11. The Agency categorizes the claimed overpayments as:

(1) failure to submit records or notes to support a claim ;

(2) failure to submit sufficient records or notes to sup port a

specific claim ; (3) impermissible claims for a period when the

patient was in a hospital ; (4) claims for excluded services ; and

(5) claims improperly billed for consecutive days. For each

claim that the Agency deemed unsupported or unauthorized, it

proposed recouping the amount paid for the claim. For the most

part , the Agency proved the overpayments that it asserts. It did

not prove most of the alleged overpayments based solely upon a

claimed overlapping hospital stay.

Claims With No Supporting Records or Notes

12. The July 2008 Medicaid Handbook , at 2 - 55 , and the July

2012 Medicaid Handbook , at 2 - 61 , require providers to maintain

and provide upon request medical records and documentation to

support each claim. Providers must retain the record s for at

least five years after the date of service. Upon the AgencyÓs

request, providers must send legible copies of all Medicaid -

related information to authorized state and federal agencies.

Id.

13. Records that do not document that all requirements or

conditions for services are incomplete records. Jul . 2008

Handbook, at 5 - 8; Jul . 2012 Handbook, at 5 - 9.

14. Providers who do not comply with the documentation,

record retention, and record production requirements of the

handbooks and section 409.913 m ay be subject to payment

recoupment and administrative sanctions. Jul . 2008 Handbook , at

2 - 57; Jul . 2012 Handbook , at 2 - 62. Incomplete records do not

satisfy the requirements.

15. The AgencyÓs Preliminary Audit Report gave Green Cross

notice of its pre liminary determination of overpayment and asked

Green Cross for any Ð documentation in support of the claims

identified as overpayments Ñ in the Preliminary Audit Report.

16. Green Cross submitted documentation to support some

claims and signed a Certifica tion of Completeness of Records on

July 17, 2014. In March of 2017, Green Cross submitted

additional document s , which the Agency considered.

17. The preponderance of the competent and substantial

evidence proved that Green Cross did not submit documents

sufficient to support claims identified as Ð no records sent Ñ or

Ð no notes submitted Ñ in the audit papers admitted as Agency

Exhibit 7. Specifically, Green Cross did not submit records to

support claims for Recipients (Rec.) 2, 4, 9, 18, 23, 24, 40, 50,

53 , 54, 56, 57, 61, 62, 63, 65, 68, 78, 80, 82, 89, 94, 99, 102,

108, 110, and 115.

18. Green Cross also did not submit records sufficient to

support specific claims for the following recipients on the dates

shown, as identified in the papers admitted as A gency Exhibit 7.

Rec. Date of claims

38 4/17/2010, 6/28/2011 - 7/1/2011

45 5/17/2012

109 4/17/2012

112 9/9/2011, 10/1/2011, 10/11/2011

19. Green Cross also did not submit notes sufficient to

document its claims for payment for services to recipients 16 ,

30, 46, 73, 75, 86, and 90, as identified in the papers admitted

as Agency Exhibit 7.

20. Furthermore, Green Cross did not submit notes

sufficient to support the specific claims for the following

recipients and dates of service, as identified in the pap ers

admitted as Agency Exhibit 7.

Rec. Date of claims

06 10/15/2009

14 11/28/2009, 12/15/2009

27 7/7/2012

28 8/26/2009, 12/17/2009

29 3/16/2012

31 2/8/2013, 3/22/2013, 5/30/2013

35 11/2/2009 - 11/7/2009, 12/14/2011, 12/18/2011, 5/15/2003 -

5/18/2013

3 7 11/10/2009, 11/11/2009, 11/16/2009, 12/11/2009

38 7/2/2011

48 3/9/2010, 5/17/2010, 5/28/2010

60 2/10/2010

83 6/19/2013

84 8/19/2009, 3/12/2010

101 1/30/2011, 1/31/2011

105 11/24/2010

107 8/29/2010, 6/5/2011

114 7/24/2011, 6/29/2012, 9/11/2012, 9 /12/2012

21. The Agency correctly identified the claims identified

in paragraphs 18, 19, and 20 as overpayments. Green Cross is

responsible for repaying these claims.

Excluded Services

22. Medicaid rules exclude specific services from

reimbursement as a Medicaid home health service. Medicaid does

not reimburse for Ð nursing assessments related to the plan of

care Ñ under the home health services program. Jul . 2008

Handbook , at 2 - 11 & 2 - 12; Dec . 2011 Handbook , at 2 - 11 & 2 - 12;

Mar . Handbook 2013, 2 - 11 & 2 - 12.

23. Green Cross billed, and Medicaid paid, reimbursement

claims for nursing assessments provided Medicaid recipients.

Those services are excluded from Medicaid payment.

24. The claims are identified below, as presented in Agency

Exhibit 7.

R ec. Date of Service

6 9/28/2009

39 12/4/2011

49 7/10/2009

51 1/16/2013

64 2/23/2010

69 3/5/2010

77 3/20/2010

91 6/10/2010

92 4/15/2010

25. Competent and substantial evidence proved that the

payments for the claims identified in paragraph 24 were

overpayments.

Improper Billing (Overlap Days)

26. Medicaid rules specify how providers must bill hours

when the period of services begins on one day and ends on the

next day. The Medicaid H andbooks require that when private duty

nursing services begin one day and end on the next day, billing

should reflect the total number of care hours provided on each

day. Jul . 2008 Handbook , at 2 - 21; Dec . 2011 Handbook , at 2 - 23;

Mar . 2013 Handbook , at 2 - 22.

27. Green Cross billed Medicaid, and the Agency paid for ,

claims where Green Cross claimed reimbursement for private duty

nursing services to Medicaid recipients provided during a period

that spanned two days but were billed as if provided on a single

day.

28. The claims, as described in Agency Exhibit 7, are

identified below by Recipient and date of service.

Rec. Date of Service

31 8/23/2012, 9/10/2012, 11/22/2012, 12/18/2012, 2/22/2013

37 8/11/2009

66 4/26/2010

72 4/11/2013, 4/23/2013

75 3/23/2010, 4/9/2012

107 8/29/2010, 3/17/2011, 6/6/2011

111 10/3/2 011, 11/7/2011, 4/20/2011

114 5/11/2011, 6/ 7/2011, 12/ 4/2011, 11/ 5/2012

116 8/29/2012, 9/14/2012

117 10/22/2012

29. Competent and substantial evidence proved that payments

for the claims identified in paragraph 28 were overpayments.

Claims for Servi ces Allegedly Provided Hospital Patients

30 . The Agency seeks to recoup repayment for 28 claims

based upon its assertion that the claims were for home health

services provided to a hospital patient and are therefore

unauthorized.

3 1 . Medicaid rules exc lude reimbursement for home health

services, billed as T1021 (home health aide visits), T1030 (home

health services provided by a registered nurse ), or T1031 (home

health services provided by a licensed practical nurse ), when

provided to a recipient in a h ospital or nursing facility. Jul .

2008 Handbook , 2 - 13; Dec. 2011 Handbook , 2 - 14; Mar . 2013

Handbook , 2 - 14.

32 . The documents submitted by Green Cross for two of the

28 claims, for Recipients 1 and 45, indicate that the patient was

in the hospital. Gree n Cross also did not provide documents

describing services rendered to Recipient 45. These claims and

the payments for them were unauthorized and overpayments .

33 . The AgencyÓs Proposed Recommended O rder describes

claims for services to Recipient 71 as b eing provided to a

hospital patient. The AgencyÓs work papers (Agency Ex. 7),

however, establish that Green Cross billed the claims as services

performed by a r egistered n urse (RN) . But, a l icensed practical

n urse ( LPN ) provided the services. For this r eason, the Agency

properly adjusted these claims to the lower LPN rate.

3 4 . The Agency denied the remaining claims , which it

categorizes as Ðhospital days excluded.Ñ For this determination,

the Agency depends on its claim that Green Cross provided the

se rvices in a hospital.

3 5 . The sole basis for that claim is the AgencyÓs record of

claims for Medicaid reimbursement submitted by a hospital. The

documents relied upon by the Agency are printed ÐUB ClaimsÑ of a

hospital. They simply show that a hospital claimed payment for

services for a patient during a time period when Green Cross also

claimed payment for services provided the patient.

3 6 . In short, the information from the hospital that the

Agency relies upon is no different from the information pro vided

in the claims filed by Green Cross that the Agency disputes.

Both are simply claims for payment. Using this Ðanalysis , Ñ the

Agency could have as easily relied upon the payment claims of

Green Cross to conclude that the hospitals submitted unauthori zed

claims for hospital services while the patient was actually at

home receiving services from Green Cross. The record offers no

reason to give more credence to the hospitalsÓ bills than to the

bills of Green Cross.

3 7 . The evidence does not permit ide ntifying what hospital

made the claim or where the hospital is located. The evidence

does not identify the person who submitted the claim on the

hospitalÓs behalf, or the information source that the hospital

relied upon in making the claim for payment.

3 8 . The evidence does not include testimony or

certification by a document custodian or officer of the hospitals

showing that the UB Claims are documents or data compilations

made at or near the time of the alleged services by, or from

information transmi tted by, a person with knowledge about the

alleged provision of service s . The record does not prove how the

hospitals obtained the information underlying the UB Claims, who

prepared the claims, or what the hospitalsÓ regular practices

were in preparing th e claims. There is no persuasive evidence

that the hospital sÓ UB Claims are records created

contemporaneously with the alleged provision of services. There

is , in fact , no evidence from any hospital representative

providing any information about how the claims are prepared and

transmitted to the Agency. The UB Claims do not satisfy the

business record hearsay exception requirements of

section 90.803(6), Florida Statutes (2017).

3 9 . There are also no documents, such as nurseÓs notes,

from the hospital t ending to prove that the patient received

services in the hospital on the dates and at the times claimed.

40 . In stark contrast, the papers include detailed notes

from Green Cross home health aides and nurses documenting the

services Green Cross provid ed patients , when they were provided ,

and who provided them . The notes are more credible and

persuasive than the excerpts from data bases recording hospital

claims for payment.

41 . The UB Claims are not records, reports, or statements

reduced to writing or data compilations setting forth the

activities of a public agency or matters observed pursuant to a

duty imposed by law as to matters for which there is a duty to

report. They are hospital bills submitted to the Agency.

4 2 . The UB Claims do not sati sfy the public records hearsay

exception of section 90.803(8), Florida Statutes.

43 . The preponderance of the persuasive evidence does not

prove that the practice of relying upon hospital payment claims

to deny another providersÓ payment claims is an acc epted and

valid auditing, accounting, analytical statistical or peer - review

method. The record does not present persuasive evidence that

hospital UB Claims have any characteristics that make them more

reliable or credible than payment claims of any other provider,

including Green Cross.

4 4 . For the claimed overpayments where the a udit r eport

relies solely on the hospital UB Claims in the work papers, the

work papers do not support the audit report as required by

section 409.913(22) , Florida Statutes .

4 5 . One further fact emphasizes why the AgencyÓs process of

relying upon untested, unevaluated UB Claims is not persuasive .

For denied claims for services to Recipients 33, 60, 95, and 105 ,

the Agency work papers do not even include a UB Claim that is th e

ostensible basis for the AgencyÓs determination that Green Cross

provided the billed services while the patient was in a hospital.

The fact that the Agency denied these claims with no basis at all

further undermines the credibility of the AgencyÓs proce ss.

4 6 . The chart below includes all of the claims that the

Agency asserts are overpayments subject to recoupment because

they were provided in a hospital . For each claim with a ÐNoÑ in

the ÐRecoup?Ñ column , the Agency did not prove by a preponderance

of the evidence that Green CrossÓs claim was improper or

unauthorized.

Claimed Overpayments Due to Hospital Days Excluded

Claim

Recipient Date Amount Additional Information Recoup?

45 5/19/2012 $34.92 notes doc. hospital & do not doc. service s Yes

2/7/2010

60 through No UB Claim No

2/9/2010 $52.38

11/3/2012

76 through No UB Claim; No Work Papers No

11/8/2012 $104.76

1/13/2012

101 through No

1/23/2012 $973.00

27 6/18/2012 $31.04 No

33 11/5/2010 $31.04 No

42 9/16/2012 $4.85 Not a Hos RN/LPN Discrepancy pital basis; Yes

60 7/18/2010 $52.38 No

71 7/31/2009 $31.04 RN/LPN Overlap Yes

87 10/20/2012 $31.04 No

106 2/10/2010 $4.85 RN/LPN Discrepancy Yes

1 9/4/2010 $26.19 Notes Document Rec. in Hospital Yes

4/1/2010 $26.19 No

14 5 /2/2010 $52.38 No

5/3/2010 $52.38 No

No

44 9/30/2009 $26.19 No

10/21/2009 $52.38

71 7/31/2009 $52.38 No

96 1/30/2012 $26.19 No

104 6/30/2012 $26.19 No

4/15/2011

95 through No UB Claim No

4/21/2011 $931.12

105 2/17/2011 $116.40 No UB Claim No

107 3/13/2011 $69.84 No

22 10/15/2010 $60.00 No

26 1/22/2010 $60.00 No

29 3/16/2012 $90.00 No

4 1 5/15/2010 $30.00 No

5/13/2010 $30.00 No

48 5/31/2010 $30.00 No

6/7/2010 $30.00 No

No

59 11/22/2009 $90.00 No

11/23/2009 $ 180.00

4/10/2010

through No

66 4/22/2010 4/17/2010 $1,440.00

through No

4/25/2010 $825.00

7/14/2009

through No

79 7/16/2009 $330.00

7/27/2010 $120.00 No

7/28/2010 $60.00 No

47. The total value of the claims that the Agency failed to

prove were improper is $6,082.28.

Claim That Reimbursement Has Already Been Paid

48. Green Cross argues that it has already repaid the

alleged overpayments. It claims that Green Cross Exhibits 1

through 3 demonstrate payment in full. They do not.

4 9. The audit that is the subject of this proceeding is

audit number C.I. 14 - 1787 - 000 or MPI Case number 2015 - 0002077.

50. Green Cross Exhibit 1, a n Agency letter to Green Cross

dated July 3, 2013, states that C.I. 12 - 1159 - 000 and C.I. 12 -

2368 - 000 are paid in full. Additionally, the undersigned took

Official Recognition of the Agency's Final Orders closing each of

those matters.

51. Neither C.I. 12 - 1159 - 000 nor C.I. 12 - 2368 - 000 are at

issue in this proceeding. The audit in dispute here is nu mber

C .I. 14 - 1787 - 000.

52. Green Cross did not prove that any of the claims

included in this proceeding were included in a prior audit.

53. In addition, the evidence demonstrated that the Agency

takes reasonable measures to prevent the overlap of overpayment

claims in subsequent audits.

CONCLUSIONS OF LAW

54 . The Division has jurisdiction over the subject matter

of this proceeding. §§ 120.569, 120.57(1), and 409.913(31), Fla.

Stat.

55 . The Agency bears the burden of establishing an alleged

Medicaid overpay ment by a preponderance of the evidence.

Southpointe Pharmacy v. DepÓt of HRS , 596 So. 2d 106, 109 (Fla.

1st DCA 1992).

5 6 . The statutes, rules, and Medicaid Provider Handbooks in

effect during the period for which the services were provided

apply in thi s dispute. Toma v. Ag. f or Health Care Admin. , Case

No. 95 - 2419 (Fla. DOAH July 26, 1996; Fla. AHCA Oct. 28, 1996).

57 . The Legislature authorized the agency to seek repayment

of overpayments it may have made for goods or services reimbursed

under the Me dicaid program. §§ 409.913(1), 409.913(11),

409.913(15)(j), and 409.913(30), Fla. Stat.

Claims With No Supporting Records or Notes

58 . The records and notes Green Cross submitted to support

the claims identified in paragraph s 17, 18, 19, and 20 do not

s atisfy the supporting documentation requirements of the July

2008 Handbook , at 5 - 8; the July 2012 Handbook , at 5 - 9; the July

2008 Handbook, at 2 - 57; and the July 2012 Handbook, at 2 - 62.

Excluded Services (Nursing Assessments)

5 9 . The preponderance of th e evidence proved that the

claims identified in paragraph 24 were for nursing assessments.

The handbooks all prohibit payment for those assessments. Jul .

2008 Handbook , at 2 - 11 & 2 - 12; Dec . 2011 Handbook , at 2 - 11 & 2 -

12; Mar . 2013, at 2 - 11 & 2 - 12. These are overpayments that the

Agency is entitled to recoup.

Improper B illing ( Overlap ping Days)

60 . The preponderance of the evidence proved that Green

Cross improperly billed for services provided in two consecutive

days by billing all the hours to one day instead of allocating

them between the days, as the handbooks require. Jul . 2008

Handbook, at 2 - 21; Dec. 2011 Handbook , at 2 - 23; Mar . 2013

Handbook , at 2 - 22. The Agency proved that the paid claims

i dentified in paragra ph 28 are overpayments that it is e ntitled

to recoup.

Hospital Days Excluded

61 . The AgencyÓs effort to recoup payments under the theory

that Green Cross provided the services to patients in a hospital

rests entirely on one document and its attachments. The document

is titled ÐHome Heal th Care Services Institutional Analysis.Ñ

(Agency Ex. 7). For the charges related to hospital stays, the

ÐanalysisÑ is only a compilation of copies of Green CrossÓs

charges for a specific patient on a specific day and a hospitalÓs

charges for the same pa tient on the same day. The corresponding

attachments are partial printouts of the AgencyÓs record of

claims from unidentified hospitals for payment for the same

patient on the same day. These documents are hearsay and not

subject to any hearsay exception . They cannot support a finding

of fact on their own . § 120.57(1)(c), Fla. Stat.

62 . They only come into evidence by operation of s ecti on

409.913(22) . It provides Ð[t]he audit report, supported by

agency work papers, showing an overpayment to the prov ider

constitutes evidence of the overpayment.Ñ

63 . The Agency attachments to the ÐanalysisÑ do not support

the reportÓs conclusion that Green Cross billed for services

provided hospital patients. The facts described in paragraphs 34

through 46 establi sh that the attachments for the claims based

upon the theory that the patient was in the hospital do not

support that determination and have no persuasive force . The

Agency is doing nothing more than using the bills of one provider

to invalidate the bills of another. The record provides no

reason to find one providerÓs bills more credible or accurate

than the otherÓs. The requirement of section 409.913(22) that

Agency work papers support the report has not been met.

64 . The Agency audit Ðmust use accept ed and valid auditing,

accounting, analytical, statistical or peer - review methods, or

combinations thereof.Ñ £ 409.913(20), Fla. Stat. The plain

language of the statute governs. Fla. Birth - Related Neurological

Injury Compensation Ass'n v. Fla. Div. of A dmin. Hearings , 686

So. 2d 1349, 1354 (Fla. 1997). There is no reason to speculate

or use statutory construction tools if a statute is clear.

Brown v . CommÓn on Ethics , 969 So. 2d 553, 559 (Fla. 1st DCA

2007). Section 409.913(2 0 ) is clear. It calls fo r use of

Ðaccepted and valid auditing, accounting, analytical, statistical

or peer - review methods, or combinations thereof.Ñ The evidence

does not establish that comparing two providers Ó billings and

arbitrarily choosing to credit one over the other meets the

standard of accepted and valid methods imposed by section

409.913(20).

65 . This is not an analytical process, such as the

statistical sampling methodology of cluster sampling that the

First District Court of Appeal found proper in Agency for Health

Care Admin istrative v. Custom Mobility, Inc. , 995 So. 2d 984

(Fla. 1st DCA 2008). This is comparing billings from two

providers and arbitrarily choosing to credit one over the other.

The ÐanalysisÑ and the report that depends upon it do not meet

the sta ndard imposed by section 409.913(20).

6 6 . The Agency maintains that the report and attachments

are prima facie evidence of overpayment. That is not what the

statute says. Ð Prima facie Ñ appears nowhere in section 409.913.

The Legislature did not include in section 409.913(22) a

direction that the Agency audit and work papers must be treated

as prima facie evidence. The Legislature only required that they

must be accepted as evidence. The determination of their

persuasiveness and credibility lies with t he trier of fact.

6 7 . The lack of a statement that the audit report and Ðwork

papersÑ should be considered prima facie evidence precludes

interpreting the statute to mean that they are prima facie

evidence. If a statute is clear and unambiguous and conve ys a

clear and definite meaning , a tribunal must apply that

unequivocal meaning without resort to rules of statutory

interpretation and construction. DepÓt of Rev . v. Graczyk , 206

So. 3d 157, 159 (Fla. 1st DCA 2016); Brown v . CommÓn on Ethics ,

969 So. 2d 553, 559 (Fla. 1st DCA 2007). The plain and ordinary

meaning of the statuteÓs words must govern. Fla. Birth - Related

Neurological Injury Compensation Ass'n v. Fla. Div. of Admin.

Hearings , 686 So. 2d 1349, 1354 (Fla. 1997). The plain and

ordinary meaning of the words of section 409.913(22) require that

the Agency audit and Ðwork papersÑ be admitted into evidence.

The plain and ordinary meaning of the words does not confer some

special power or persuasiveness upon the documents. They are

evidence. Like all evidence, they must be persuasive and

credible to support a finding of fact. They are not.

6 8 . Interpreting the statu t e to make the papers prima facie

evidence of overpayment requires adding words to the statute,

words that change its effect. Knowle s v. Beverly Enters. -

Florida, Inc. , 898 So. 2d 1, 7 (Fla. 2004)(Ð The law is well

settled that courts in this state are Ò without power to construe

an unambiguous statute in a way which would extend, modify, or

limit , its express terms or its reasonable and obvious

implications . Ó Holly , 450 So. 2d at 219 (quoting Am. Bankers

Life Assurance Co. of Fla. v. Williams , 212 So. 2d 777, 778 (Fla.

1st DCA 1968)Ñ) . Adding Ð prima facie Ñ to section 409.913(22)

dramatically alters the statuteÓs express terms and reason able

and obvious implications. It changes the effect of the statute

from making documents evidence to making them, on their own

regardless of how flawed the reasoning or unsupported the

conclusions in them, Ðsufficient to establish a fact unless and

until rebutted.Ñ Dockswell v. Bethesda Mem'l Hosp., Inc. , 210

So. 3d 1201, 1209 (Fl a. 2017) (defining prima facie ) .

6 9 . If the Legislature intended for the papers to be prima

facie evidence it would have said so. State v. Chubbuck , 141 So.

3d 1163, 1171 (Fla. 2014) . In other statutes, the Legislature

has been explicit and specific when it intends for something to

be accepted as prima facie proof of a fact. See § 810.07(1),

Fla. Stat. (2017)(Ð[P]roof of the entering of such structur e . .

. is prima facie evidence of entering with intent to commit an

offense.Ñ); £ 810.07(2), Fla. Stat. (2017 ) (Ð[P]roof of the

attempt to enter . . . is prima facie evidence of attempting to

enter with intent to commit an offense.Ñ); £ 173.06(1), Fla.

Stat. (2017) (ÐAn affida vit . . . shall be received in evidence

as prima facie proof of the facts so certified . . . .Ñ);

§ 173.06, Fla. Stat. (2017) (ÐTax certificates shall be

admissible in evidence and shall be prima facie valid.Ñ); £

766.102(2)(b), Fla. Stat. (2017) (Ð[D]isco very of the presence of

a foreign body, such as a sponge, clamp . . . or other

paraphernalia commonly used in surgical examination, or

diagnostic procedures, shall be prima facie evidence of

negligence on the part of the health care providerÑ .

70. Statu tes should not be construed to produce an

unreasonable or absurd result. State v. Schell , 222 So. 2d 757,

759 (Fla. 2d DCA 1969) . Construing section 409.913(22) to make

any do cument that the Agency labels an audit report and attaches

papers to, regardles s of its facial deficiencies, prima facie

evidence is unreasonable and absurd.

71. The fact that the Legislature did not declare that the

Agency papers were Ð prima facie Ñ evidence in section 409.913(22)

requires a conclusion that the Legislature did not intend the

Agency papers to be prima facie evidence. See Smith v. Smith ,

224 So. 3d 740, 747 (Fla. 2017); State v. Chubbuck , 141 So. 3d

1163, 1171 (Fla. 2014); DepÓt of Rev . , 206 So. 3d 157, 161 (Fla.

1st DCA 2016) . 4 /

7 2 . In this case, the report and pr intouts of hospital

billings are not persuasive or credible evidence that Green Cross

improperly billed the Agency for services provided patients who

were in a hospital. The Agency did not prove that it overpaid

the claims identified in paragraph 46 . The ir value of $6,082.28

should not be included in the overpayment amount recouped by the

Agency or penalty calculation .

7 3 . The preponderance of the evidence proved that the

Agency overpaid Green Cross $16,657.68 and is entitled to recoup

that amount.

Sanc tions and Costs

74 . Florida Administrative Code Rule 59G - 9.070(7) , as in

effect during the audit period, authorizes the Agency to impose

an administrative fine when a provider does not comply with

Medicaid requirements. It states in pertinent part:

Sanct ions: In addition to the recoupment of

the overpayment, if any, the Agency will

impose sanctions as outlined in this

subsection. Except when the Secretary of the

Agency determines not to impose a sanction,

pursuant to Section 409.913(16)(j), F.S.,

sancti ons shall be imposed as follows[.]

7 5 . The rule provides for imposition of a $1,000.00 fine

per claim for a first offense. Rule 59G - 9.070(4)(a) caps the

fine at 20 percent of the overpayment amount. T he Agency's fine

should be adjusted using only the violations found in this

Recommended Order. The undersigned finds no factual basis for

enhancing the fine amount.

7 6 . The authority under rule 59G - 9.070 to impose sanctions

on providers is clear. The meaning of the phrases Ð will impose Ñ

and Ð shall be im posed Ñ are unambiguous and directory. Carmack v.

State , 31 So. 3d 798, 800 (Fla. 1st DCA 2009)(holding that the

terms of a law or regulation should be given their plain

meaning).

7 7 . To impose a punitive administrative fine, the Agency

must establish the factual grounds for doing so by clear and

convincing evidence. Dep't of Child. & Fams. v. Davis Fam. Day

Care Home , 160 So. 3d 854, 857 (Fla. 2015). The Agency presented

clear and convincing evidence that Respondent failed to comply

with state and feder al law, rules, regulations, and policies of

the Medicaid program for the violations found in this Order.

7 8 . The Agency must reduce the fine amount to 20 percent of

the overpayment after revising the overpayment amount in

accordance with this Order. Fla . Admin. Code R. 59G - 9.070(4)(a).

The adjusted fine that the Agency is entitled to recover is

$3,331.54.

7 9 . The Agency seeks reimbursement of costs that it

expended in the investigation of Green Cross and the litigation

of the audit findings. § 409.913 (23), Fla. Stat. The Agency

incurred costs of $849.01 before hearing. It has incurred

additional costs preparing for and attending the final hearing.

80 . Since the hearing , the Agency has filed a Motion to

Assess Costs seeking payment of its investigati ve and litigation

costs.

81. The undersigned reserves jurisdiction of this issue.

If the parties cannot agree upon the amount of additional costs,

upon proper application and proof, the Agency will be awarded

appropriate and reasonable costs.

RECOMMEND ATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Agency for Health Care

Administration, render a f inal o rder requ i ring Respondent , Green

Cross Home Care Services to :

A. pay the overpayment amount of $ 1 6, 657.68 ;

B. pay sanctions of $3,331.54 ; and

C. repay the recalculated and updated amounts for the

AgencyÓs investigative, legal, and expert witness costs.

If the parties do not stipulate to the amount of costs, the

final order should permit Responde nt, Green Cross Home Health

Services , to request a hearing to contest the amount of costs.

DONE AND ENTERED this 25th day of April, 2018 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Ju dge

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 25th da y of April, 2018 .

ENDNOTE

1/ All citations to the Florida Statutes are to the 2017

compilation , unless noted otherwise.

2/ The relevant portions of section 409.913, Florida Statutes,

did not change materially during the audit period. Consequently,

this Recommended Order refers to the statute number without

identifying a year of statute compilation.

3 / Various iterations of the handbooks apply during the audit

period. This Recommended Order will identify them by year and

month followed by the appr opriate page number. The portions

relevant here do not differ materially from handbook to handbook.

4 / In a recent Recommended Order, adopted by Agency Final Order,

the undersigned included a conclusion of law saying, Ð the Agency

can make a prima facie case by proffering a properly supported

audit report, which must be received in evidence.Ñ Ag . for

Health Care Admin. v. Nakhla , Case No. 17 - 1825MPI (Fla. DOAH

Feb. 21, 2018 ; Fla. AHCA Apr. 6, 2018). Some Recommended Orders

have made similar statements. See e.g. , Disney Med . Equipment,

Inc. v. Ag . for Health Care Admin. , Cas e No. 05 - 2277MPI (Fla.

DOAH Apr. 11, 2006) ; Fla. AHCA Jun . 1, 2016). Some have not.

See e . g. , Ag . for Health Care Admin. v. JRM Pharmacy, Inc. , Case

No. 14 - 321MPI (Fla. DOAH Jan. 1 3, 2015 ; Fla. AHCA

Feb. 2, 2015).

The facts of the cases reciti ng that the Agency work papers

were prima facie evidence were such that whether the report and

work papers were prima facie evidence did not determine the

outcome. In Nakhla the issues wer e whether the dentistÓs records

supported performing the procedures that he performed. The

Agency presented expert testimony about what the records showed ,

what treatment the standard of care called for , and what the

Medicaid rules permitted reimbursement for.

In Disney Medical Equipment, Inc. , the evidence included

summaries of the pharmacy records, undisputed facts, and expert

testimony explaining the statistical analysis the Agency used.

The Recommended O rder , adopted by the AgencyÓs Final Order, al so

noted that the directive to receive the audit report and

supporting papers as evidence did not require that the evidence

be believed , no matter what. That is the situation here. The

documents the A gency relies on are not persuasive or credible .

The f acts of this case requir ed examination of the statute

and consideration of applicable authorities. The examination

compels a conclusion that section 409.913(22) does not make the

AgencyÓs audit and supporting work papers prima facie evidence.

The section similarly does not compel a conclusion that the

evidence is credible or persuasive.

COPIES FURNISHED:

Aline La F ortune, RN, ARNP

Green Cross Home Care Services, Inc.

15383 Northwest 7th Avenue

Miami, Florida 33169

James B. Countess, Esquire

Office of the General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Alexandra M. Marshall, Esquire

Office of the General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Ta llahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Dr ive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena Grantham , Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Kim Kellum, Esquire

Agency for Health Care Administration

27 27 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(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 O rder should be filed with the agency that

will issue the Final Order in this case.