17-006836RU Covenant Hospice, Inc. vs. Agency For Health Care Administration Status: Closed DOAH Final Order on Wednesday, August 15, 2018.

Summary: Medical standards applied by AHCA's medicaid Peer Review Physicians during MPI audit of patient records are not agency statements defined as rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COVENANT HOSPICE, INC.,

Petitioner,

vs. Case No. 17 - 6836RU

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a final hearing was held in t his matter

on March 19 through 23, 2018 , in Tallahassee, Florida, before

Administrative Law Judge Yolonda Y. Green of the Division o f

Administrative Hearings (ÐDivision Ñ).

APPEARANCES

For Petitioner: Bryan K Nowicki, Esquire

Reinhart Boerner Van Deuren S . C .

22 East Mifflin Street , Suite 600

Madison, Wisconsin 53701 - 2018

For Respondent: Rex D. Ware, Esquire

M arion Drew Parker, Esquire

Radey Law Firm

301 South Bronough Street , Suite 200

Tallahassee, Florida 32301 - 1722

STATEMENT OF THE ISSUE

Whether Respondent, Agency for Health Care Administration

( ÐRespondentÑ or Ð AHCA Ñ ), has relied on any statements of

genera l applicability regard ing reimbursement of Medicaid

expenses which are agency rules, as defined in section

120.52(16), Florida Statutes, 1 / but ha ve not been adopted as

rules in accordance with section 120.54(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Covenant Hospice, Inc. (ÐPetitionerÑ or

ÐCovenantÑ) , an authorized provider of Medicaid services, was

audited by RespondentÓs Office of Medicaid Program Integrity

(ÐMPIÑ) for the claims period January 1, 2011 , through

December 31, 2012 (ÐAudit P eriodÑ) , and found to be in violation

of certain Medicaid provider policies. Respondent prepared a

Fi nal Audit Letter on August 9, 2016, informing Petitioner that

it was overpaid $714,518.14 fo r services provided during the

Audit P eriod and imposing fine s ($142,903.63) and costs

($131.38) . Th at proceeding is pending as DOAH Case No. 17 -

4641MPI (the ÐOverpayment CaseÑ).

On August 29, 201 7 , Petitioner timely requested an

administrative hearing challenging RespondentÓ s determination of

overpayments and i mposition of fines and costs. The undersigned

scheduled this matter for a fina l hearing on October 23

through 25, 2017. On October 5, 2017, the parties filed a Joint

Motion for Continuance and the hearing was rescheduled for

February 5 through 9, 2018.

On December 18, 201 7 , Respondent filed its Petition for

Formal Hearing to Challenge Agency Statements Defined as Rules

(ÐUnadopted Rule ChallengeÑ). Petitioner filed the instant

Unadopted Rule Cha llenge alleging that AHCAÓs determination of

overpayment was based, at least in part, on findings that are

improperly based on statements of general applicability that

have not been subject to the rulemaking requirements of

se ction 120.54, in violation of section 120.54(1)(a). On

December 20, 20 1 7 , the undersig ned entered an O rder

consolidating the Unadopted Rule Challenge with the O verpayment

C ase.

On January 9, 2018, Petitioner moved for a continuance ,

which the undersigned granted. On January 12, 2018, Respondent

moved for continuance, which was also grant ed. This matter was

rescheduled for hearing on March 19 through 23, 2018.

The parties filed a Joint Pre - hearin g Stipulation , which

contains facts that have been incorporated into the Findings of

Fact below, to the extent relevant.

On March 19 , 2018, t he f inal h earing convened as scheduled

and concluded on March 23, 2018 . At the final hearing, Joint

Exhibits 1 through 121, 124 through 167 , and 169 were admitted

into evidence.

AHCA prese nted the live testimony of four witnesses:

Robert Reifinger, FC CM , a program administrator of AHCA Ós M PI

office ; Mike Armstrong, the auditor in charge for Health

Integrity, LLC (ÐHealth Integrity Ñ) ; Nada Boskovic, M.D., AHCAÓs

expert in hospice and palliative care ; and Charles D.

Talakkottur, M.D., AHCAÓ s expert in in ternal medicine . AHCA

also presented by deposition Dr. Todd Eisner, AHCAÓs expert in

internal medicine and g astroenterology. Covenant presented live

testimony of David McGrew, M . D . , FAAHPM, HMF C, CovenantÓs expert

in hospice and palliative care ; and Jame s Smith, DO, CovenantÓs

i n terim chief medical o fficer and corporate medical d irector for

Covenant .

The parties ordered a copy of the hearing tran script.

The seven - volume T ranscript of the final hearing was f iled with

the Division on April 6, 2018 , afte r which t he parties filed a

Joint Motion Regarding Deadlines and Page Limits for Proposed

Orders . The undersigned granted the motion, thereby increasing

the page limit for the proposed final orders (ÐPFOsÑ) to 50

pages and extending t he deadline for submi ttal of the PFOs to

May 18, 2018. The parties timely filed PFOs, which have been

considered in preparation of this Final Order.

FINDING S OF FACT

Based on the evidence presented at the final hearing and

the record in this matter , the following Findings of Fact are

made.

Parties

1. Covenant is a provider of hospice and end - of - life

services and a t all times relevant to this matter , the program

was an authorized provider of Medicaid services pursuant to a

valid Medicaid provider agreement with AHCA.

2 . AHCA is the state agency responsible for administering

the Florida Medicaid Program. Medicaid is a joint federal/state

program to provide health care and related services to qualified

individuals , including hospice services.

3 . AHCA is authorized to re cover Medicaid overpayments, as

deemed appropriate. § 409.913 , Fla. Stat.

Medicaid Audit Process

4. The U.S. Department of Health & Human Services, Centers

for Medicare and Medicaid Services (ÐCMSÑ) , contracte d with

Health Integrity , a private vendor, t o perform an audit of

Covenant. Health Integrity retained a company called Advanced

Medical Reviews (ÐAMRÑ) to provide peer physician reviews of

claims to determine whether an overpayment occurred.

5. O n or about December 3, 2013 , Health Integrity

comm enced the audit of Covenant . The scope of the audit was

limited to Medicaid recipients that receive d hospice services

from Covenant during the period of January 1, 2011 , through

December 31, 2012 . Generally speaking, the files were

identified for review using the following criteria: a) the

recipient was not dually eligible (eligible for both Medicaid

and Medicare); and b) Covenant pr ovided hospice services for

182 days or longer, based on the recipientÓs first and last day

of service within the Audit Per iod. Thus, the objective of the

audit was to determine whether certain Medicaid patients were

eligible for hospi ce benefits provided by Covenant .

6. When H ealth Inte grity applied the audit criteria to the

Medicaid claims paid by AHCA to Covenant, Healt h Integrity

determined that Covenant had provided hosp ice services to

62 Medicaid recipients for 182 days o r longer during the Audit

Period .

7. Covenant provided Health Integrity with medical and

rela ted financial records (ÐCovenant Ós RecordsÑ) in order to

support the eligibility of these 62 patients for Me dicaid

benefits paid by AHCA.

8. To qualify for the Medicaid hospice program, all

recipients must, among other things: a) b e certified by a

physician as terminally ill with a life expectancy of six months

or less if the diseas e runs its normal course; and

b) v oluntarily elect hospice care for the terminal illness.

See Florida Medicaid Hospice Services Coverage and Limitations

Handbook , ( January 2007 edition ) (ÐHandbookÑ) at page 2 - 3 , as

adopted by Fla. Admin. Code. R. 59G - 4.140 (effective Dec. 24,

2007); see also § 400.6095(2), Fla. Stat., (2010 - 2012 ).

9. Health Integrity employs claims a nalysts who perform ed

an initial review of Covenant Ós medical records to determine if

the recipients were elig ible for Medicaid hospice benefits. All

Health Integrity claims a nalysts are registered nurses.

10. If the Health Integrity claims a nalyst is able to

assess that the patientÓs file contains sufficient documentation

to justify eligibility for h ospice be nefits for the entire

length of stay under review in the audit, there was no

imposition of an overpaymen t for that file and , thus , the claim

is not evaluated further.

11. If the Health Integrity claims a nalyst is unable to

assess whether the patientÓs f ile contains sufficient

documentatio n to determine eligibility for h ospice benefits , or

if only a portion of the patientÓs stay could be justified by

the H ealth I ntegrity claims a nalyst, the file is then forwarded

to an AMR physician to make the ultimate d etermination as to

eligibility for Medicaid hospice benefits and whether an

overpayment is due the Florida Medicaid program.

12. With respect to the Covenant audit, the Health

Integrity claims a nalysts reviewed Covenant Ós medical files for

the 62 initia lly identified recipients and determined that no

further action was warranted with respect to 10 recipients. As

a result, 52 files were referred for p hysician peer review by

AMR.

13. AMR maintains a secure portal (ÐAMR PortalÑ) that

H ealth I ntegrity pe rsonnel access to transmit all received

provider files to AMR. AMRÓs peer review physicians, in turn,

use the AMR Portal to review the totality of the providerÓs

submitted documentation, including all medical case records, and

provide their comments.

1 4 . As re quired by section 409.9131, AHCA referred

Petitioner Ó s records for peer review to determine whether there

was a medical necessity for a hospice program.

15 . Sectio n 409.9131(2) , Florida Statutes, sets forth the

following definitions:

(b) ÐMed ical necessityÑ or Ðmedically

necessaryÑ means any goods or services

necessary to palliate the effects of a

terminal condition or to prevent, diagnose,

correct, cure, alleviate, or preclude

deterioration of a condition that threatens

life, causes pain or s uffering, or results

in illness or infirmity, which goods or

services are provided in accordance with

generally accepted standards of medical

practice. For purposes of determining

Medicaid reimbursement, the agency is the

fina l arbiter of medical necessit y. In

making determinations of medical necessity,

the agency must, to the maximum extent

possible, use a physician in active

practice, either employed by or under

contract with the agency, of the same

specialty or subspecialty as the physician

under revie w. Such determination must be

based upon the information available at the

time the goods or services were provided.

(c) ÐPeerÑ means a Florida licensed

physician who is, to the maximum extent

possible, of the same specialty or

subspecialty, licensed un der the same

chapter, and in active practice.

(d) ÐPeer reviewÑ means an evaluation of

the professional practices of a Medicaid

physician provider by a peer or peers in

order to assess the medical necessity,

appropriateness, and quality of care

provided , as such care is compared to that

customarily furnished by the physicianÓs

peers and to recognized health care

standards, and, in cases involving

determination of medical necessity, to

determine whether the documentation in the

physicianÓs records is adeq uate.

Peer Review

16 . Each AMR peer reviewer retained to review the

respective recipientÓs patient records prepared a written

report , which was based on the reviewerÓs opinion regarding

whether the patient had a terminal diagnosis , with a life

expe ctancy of six months or less to live if the recipientÓs

terminal illness followed its natural course.

17 . The peer reviewers formulated their opinion s based on

their own training, experience, and the generally accepted

standards in the medical community wi thin the respective

specialty. The fa ctors for formulating an opinion include the

terminal diagnosis, comorbidities, and any other factors tha t

provide a complete picture in evaluating the eligibility for the

hospice program. After the AMR peer review physicians reviewed

the 52 Covenant recipient files loaded into the AMR Portal, the

AMR physician s determined that 23 recipients were eligible for

Medicaid ho spice services and 29 patients were ineligible.

18 . On February 12, 2016, Health Integrity pres ented the

Draft Audit Report (Ð DAR Ñ) to Covenant for comment and response.

Covenant provided a response to the DAR, and contested the

overpaym ents for each of the 29 recipients. CovenantÓs response

was provided to the AMR peer review physician s, who, aft er

reviewing the response, rev ised their opinions for four

recipients. Therefore, the number of recipients in disp ute was

reduced to 25 patients .

19 . Health Integrity then prepared a Revised Draft Audit

Report (ÐRDARÑ), which assessed an overpayment am ount of

$714,518.1 4, relating to the 25 recipients . Health Integrity

presented the RDAR to CMS and AHCA for approval.

20 . After the RDAR was approved by CMS and AHCA , Health

Integrity prepared and issued the Final Audit Report (ÐFARÑ),

upholding the ov erpayments identified in the RDAR, and submitted

it to CMS. CMS provided the FAR to AHCA with instructions for

AHCA to initiate the state recovery process and to furn ish the

FAR to Covenant.

21 . The FAR contains the peer review physiciansÓ basis for

de termini ng why each of the 25 recipients at issue w as not

eligible for M edicaid hospice services.

22 . The FAR determined that Petitioner was overpaid

$714,518.14 for services provided to the 25 recipients during

the Audit Period . The FAR also imposed a f ine of $142,903.63

and assessed costs of $131.38 . However, the parties have since

reduced the num ber of disputed patients from 25 to 17 patients.

As a result, AHCA is seeking a revised amount of overpayment in

the total amount of $677,023.44, with a corr esponding revised

fine amount of $135,404.68, for the remaining files in dispute.

23 . At the heart of Petit ionerÓ s rule challenge are

allegations that AHCA relied on agency statements of general

applicability regarding a patient Ós eligibility for hos pice

services.

24 . To be eligible for Florida Medicaid hospice services, a

recipient must be certified by a physician as terminally ill with

a life expectancy of six months or less , if the disease runs its

normal course. T he Handbook also requires:

Do cumentation to support the terminal

prognosis must accompany the initial

certification of terminal illness. This

documentation must be on file in the

recipientÓs hospice record. The

documentation must include, where applicable,

the following:

¤ Term in al diagnosis with life expect -

a ncy of six months or less if the terminal

illness progresses at its normal course;

¤ Serial physician assessments, laboratory,

radiological, or other studies;

¤ Clinical progression of the terminal

disease;

¤ Recent impaired nutritional status related

to the terminal process;

¤ Recent decline in functional status; and

¤ Specific documentation that indicates that

the recipient has entered an endstage of a

chronic disease.

Unadopted Rule Challenge

2 5 . Covenant alleged that AHCA relied on the following

three types of statements and alleges that those statements are

unadopted rules: 1) certain observations included i n the peer

review physician s Ó reports; 2) anticipated findin gs in the

Audit Test Plan; and 3) the inconsistent application of the

phrase Ðwhere applicableÑ as found in the Handbook.

26 . CovenantÓs Exhibit ÐA Ñ to its Petition identified what

it alleges are the statements relied upon by Covenant peer

reviewer s when determining whether the disputed p atients were

eligible for hospice. Covenant alleges the statements are

Ðrule s Ñ as d efined in s ection 120.52(16 ) .

27 . The statements referenced by Covenant in Exhibit ÐAÑ

include observations regarding the medical condition of the

patients referenced. B ased on the medical records for each

recipient , the statements made by the peer reviewers were

opinion s formulated based on their medical expertise and

experience . The opinion of a peer reviewer is not a standard

used to determine th e eligib ility of a pat ient , but rather an

opinion based on expertise and experience.

28 . Based on the testimony, live or by deposition, of

AHCAÓs peer review physician s , the peer reviewers use the six

criteria set forth in the Handbook to determine the respective

patientÓs eligibility for hospice services. The observation s and

comments made by the peer reviewers in their reports were based

on the medical records for each terminally diagnosed patient .

29 . Petitioner argues that AHCA has not enga ged in

rulemaking to adopt the expertÓs opinions based on medical

standards.

30 . T he documented statements in the peer review

physicianÓs opinion s were medical determinations mad e by AHCAÓs

peer review physician s . They are not standards used to determine

the eligibility of each recipient. The peer review physician s

evaluated the presence of disease progression, decline in status,

increased symptom burd en, or severity of the patient Ós illness to

determine whether the progression of illness would lead to death

within six months .

31 . Although Covenant challenged statements offered by peer

reviewer, Dr. Ankush Bansal, Dr. BansalÓs claims were re - reviewed

and AHCA offered the testimony of the new peer review physician

to support its claim of overpayment. Thus , t he alleged

statemen ts documented by Dr. Bansal are not properly before the

undersigned for consideration.

Anticipated Findings

32 . Health Integrity claims analysts reviewed CovenantÓs

cl aims and determined whether the claims should also be reviewed

by a peer review phys ician . If the claims analyst determined

that a claim needed further review , they were required to have

that c laim forwarded to a qualified peer review physician who

would make a final determination of eligibility. None of th e

overpayment claims in the DA R or the FAR , as amended , was the

result of any decision made by an y H ealth Integrity claims

analyst nurse.

33 . There was no evidence offered at hearing to

demonstrate that the peer review physicians relied on the

anticipated findings in the audit proces s or thereafter. The

peer review physician, not the claims analyst, made the

determination regarding eligibility , which wa s based on the

criteria in the H andbook.

34 . Covenant offered no evidence at hearing that the

observations or com ments listed in its Petition were the

det erminative factor for any peer reviewerÓs determination that

a patient was ineligible for Medicaid hospice services.

3 5 . AHCAÓs peer reviewers relied on factors within the

patientÓs records to make a determination of eligibility for

hospice services. Their reliance on their experience and

expertise to evaluate eligibility of each patient does not

transform their respective statements into a rule. The

statements were specific to the individual patient , not general

statements of gene ral applicability.

Application of Ð Where Applicable Ñ Language

3 6 . The third and final type of statement challenged by

Covenant is the alleged inconsistent application by the peer

review physicians of the phrase Ðwhere applicable,Ñ which is

found i n the Ha ndbook.

3 7 . The evidence offered at hearing demonstrates that

each peer review physician applied the criteria from the

Handbook to determine a patientÓs eligibility for hospice

services. According to the record, the peer reviewers applied

the six criter ia in the H andbook based on the patient records,

including medical history and diagnosis.

CONCLUSIONS OF LAW

38 . The Division of Administrative Hearings h as

jurisdiction over the parties and subject matter in this

proceeding pursuant to sections 120.56( 4), 120.569, and

1 20.57(1), Florida Statutes (2017 ).

39 . AHCA is the agency with the statutory duty to provide

oversight of the Florida Medicaid program, and to ensure the

integrity of the program, including requiring Ðrepayment for

inappropriate, medic ally unnecessary, or excessive goods or

services from the person furnishing them . . . . Ñ

§ 409.913(11), Fla. Stat.

40 . Covenant is an approved provider and is subject to the

jurisdiction a nd regulation of the MPI Office of AHCA.

41 . An agency statemen t that comes within the definition

of a rule must be adopted according to the rulemaking process.

Envtl. Trust, Inc. v. DepÓt E n v tl. Prot. , 714 So. 2d 493

(Fla. 1st DCA 1998); Christo v. DepÓt of Banking and Fin. ,

649 So. 2d 318 (Fla. 1st DCA 1995).

4 2 . S ection 120.56(4) provides that a person substantially

affected by an agency statement that meets the definition of a

rule, but which has not been adopted by rulemaking procedures,

may challenge that statement.

43 . In order to prove standing , Petitioner must show that:

1) the agency statement of policy will result in a real or

immediate injury in fact ; and 2) the alleged interest is within

the zone of interest to be protected or regulated. Jacoby v.

Fla. Bd. o f Med. , 917 So. 2d 358, 360 (Fla. 1st DCA 20 05).

44 . Petitioner has standing to bring this action pursu ant

to section 120.56(4)(a), as AHCA has relied on the alleged

statements at issue in determining the amount that Petitioner

was overpaid by Medicaid during the Audit Period .

4 5 . The L egislatur e has determined that agencies must

adopt any policies meeting the de finition of a rule as rules.

§ 120.54(1), Fla. Stat.

46 . Section 120.56(4) provides in pertinent part:

(a) Any person substantially affected by an

agency statement may seek an adminis trative

determination that the statement violates

s. 120.54(1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule und er s.

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

(b) If a hearing is held and the petitioner

proves the allegations of the petition, the

agency shall have the burden of proving that

rulema king is not feasible or not

practicable under s. 120.54(1)(a).

47 . Section 120.52(16), in relevant part, defines the term

ÐruleÑ as follows:

ÐRuleÑ means each agency statement of

general applicability that implements,

interprets, or prescribes law or po licy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

48 . An " unadopted rule " is defined as an ag ency statement

that meets the definition of the term rule, but that has not

been adopted pursuant to the requirements of section 120.54.

§ 120.52(20), Fla. Stat.

49 . In this proceeding, Covenant has the burden of

demonstrating by a prepond erance of the e vidence that the

statement s regarding the determination of eligibility for

hospice services meet the definition of a rule and that the

agency has not adopted the statement s by rulemaking procedures.

S w . Fla. Water Mgmt. Dist. v. Charlotte Cnty . , 774 So. 2 d 903,

908 (Fl a. 2d DCA 2001); § 120.56(4)(a) , (b), Fla. Stat.

50 . Covenant identified three types of alleged agency

statements of general applicability in its Petit ion. Petitioner

did not prove that t he peer reviewerÓs findings regarding

eligibility f or hospice services were agency statements.

Petitioner also did not prov e that the statements made by each

peer reviewer regarding certain patients were applied to any

other patients .

51 . Even if Petitioner was able to demonstrate that the

AHCA peer re viewers applied the alleged statements to support

their determination of eli gibility for hospice services, that is

not sufficient to raise those statements to the level of an

agency statement of general applicability.

5 2 . The courts have considered the v arious elements of

this statutory definition in determining whether a statement

constitutes an unadopted rule. Perhaps the most fundamental

element is that the statement must be an ÐagencyÑ statement - an

expression of policy by the agency. First, it mus t be a

statement of the agency as a state institution, not merely the

position of a single employee or group of employees. Second, to

be a statement of the agency, it must go beyond the mere

reiteration or restatement of policy already established by a

pr operly adopted rule or by the implemented statute.

St. Francis Hosp., Inc. v. DepÓ t of HRS , 553 So. 2d 1351

(Fla. 1st DCA 1989).

53 . The concept of general applicability involves the

force and effect of the statement itself. An agency statement

that r equires compliance, creates or adversely affects rights,

or otherwise has the direct and consistent effect of law is a

rule. State B d . of Admin. v. Huberty , 46 So. 3d 1144, 1147

(Fla. 1st DCA 2010). A statement that does not do those things

is not a rule .

54 . An agency statement must also be consistently applied .

In Department of Highway Safety and Motor Vehicles v. Schluter ,

705 So. 2d 81, 82 (Fla. 1st DCA 1997), the court found three of

the challenged policies not to be generally applicable because

an employee's supervisor was not required to apply them, and

therefore they could not be considered to have the Ðconsistent

effect of law.Ñ See also Coventry First, LLC v. Off. of Ins.

Reg . , 38 So. 3d 200, 205 (Fla. 1st DCA 2010) (examination manual

provi ded to examiners of the Office of Insurance Regulation not

generally applicable because examiners had discretion not to

follow it).

55 . None of the c hallenged s tatements raised by Covenant

is self - executing or by their own effect , create rights, require

compliance , or otherwise have the direct and consistent effect

of law.

56 . Regarding the peer review observ ations that Covenant

asserts were statements of general applicability, the evidence

in the record does not demonstrate that any observation made by

an individual peer reviewer is a Ðrule.Ñ T he evidence

demonstrates that the alleged observations made by the peer

reviewers did not appear in the file of e ach. Rather, patient

records were reviewed by a peer reviewer on a case - by - case

basis . The peer reviewers evaluated eligibility based upon

their respective medical training, experience and judgment, and

their observations of the patientÓs medical history . Thus, the

observations could not be considered to have the Ðconsistent

effect of law.Ñ

57 . Further , the courts have clearly held, where

application of agency policy is subject to the discretion of

agency personnel , the policy is not a rule. See Coventry F irst,

LLC v. Off. of Ins. Reg . , 38 So. a t 204 (quoting McDonald v.

DepÓ t of Banking & Fin . , 346 So. 2d 569, 581 (Fla. 1st DCA

1977)). Here, the evidence demonstrated that the peer

reviewerÓs observations were made solely at the discretion of

each individual peer reviewer , on a case - by - case basis, based

up on his or her respective medical judgmen t , and upon review of

each patient file. There was not sufficient evidence offered at

hearing to demonstrate that a peer reviewerÓs final decision was

determined solely upon the observations listed in Exhibit Ð A Ñ to

CovenantÓs Petition. Rather, the peer reviewer s consistently

testified that any observations noted in their review of a

particular medical record was only one of several factors they

considered when rendering their final opinions. T he

observations we re in the context of each peer reviewerÓs

t raining and experience as they applied the criteria of the

Handbook.

58 . T he challenged observations are also not self -

executing and require the exercise of discretion in their

application. The statements at issue do not establish that the

service pro vider owes money. Ag. f or Health Care Admin. v.

Custom Mobility, Inc. , 995 So. 2d 984, 987 (Fla. 1st DCA 2008) .

T he observations were st atements made by different peer

reviewers on a case - by - case basis as a factor in their

respective determination regard ing whether a particular patient

was eligible for hospice services .

59 . Regarding the term Ðanticipated f indings,Ñ no evidence

was offered to show that they were self - executing or required

compliance or had the effect of law. There was no testimony or

other proof that any of the claims analyst nurses involved in

reviewing the original file s reviewed or even applied the

Ðanticipated f indings Ñ in rendering any decision in the audit,

much less that they were required to use them in judging the

medical reco rds they reviewed. Furthermore, the claims analyst

nurses had no ultimate decision - making authority that would

adversely affect Covenant. The ultimate determinations as to

medical necessity were made by the peer reviewers who were not

provided the Ðantic ipated f indings . Ñ

60 . Moreover, there was not sufficient evidence offered at

hearing to demonstrate that the Ðanticipated f indingsÑ were used

to determine the eligibility of any specific patient, and no

evidence was presen ted to indicate the Ðanticipate d f indingsÑ

are inconsistent with the requirements already codified in

Florida Administrative Code Rule 59G - 1.140 .

61 . T he alleged inconsistent application of the term

Ðwhere applicableÑ is not an unadopted agency statement.

62 . Covenant failed to pro ve that any of the Challenged

Statements w ere agency statement s of gener al applicability that

implement, interpret, or prescribe law or policy or describe the

procedure or practice requirements of an agency , including any

form , which impose any requirement or solicit any information

not specifically required by statute or by an existing rule.

63 . The appropriate forum for resolution of the

observations and determinations contained in the FAR and AHCAÓs

findings is the underlying Overpayment C ase.

FINAL O RDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

That the Petition of Covenant Hospice to Challenge Agency

Statements Defined as Rules is dismissed.

DONE AND ORDERED this 15th day of August , 2018 , in

Tallahassee, Leon Co unty, Florida.

S

YOLONDA Y. GREEN

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 15th day of August , 2018 .

ENDNOTE

1/ Except as otherwise indicated, all references to statutes and

rules are to the versions in effect in 2011 - 2012 , the time the

statements alleged to be unadopted rules s ubstantially affected

Peti tioner by virtue of RespondentÓ s Final Audit Letter.

COPIES FURNISHED:

Steven Alfons Grigas, Esquire

Akerman, LLP

106 East College Avenue , Suite 1200

Tallahassee, Florida 32301

(eServed)

Bryan K. Nowicki, Esquire

Reinhart Boen er Van Deuren s.c .

22 East Mifflin Street , Suite 600

Madison, Wisconsin 53701 - 2018

(eServed)

Rex D. Ware, Esquire

M. Drew Parker, Esquire

Radey Law Firm

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301 - 1722

(eServed)

Stefan Robert Grow, General Counsel

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

S hena Grantham, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServ ed)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Build ing

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedi ngs are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency clerk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order t o be reviewed.