18-001848MPI Agency For Health Care Administration vs. Hcr Manor Care Services Of Florida, Llc, D/B/A Heartland Home Health Care Status: Closed Recommended Order on Thursday, March 7, 2019.

Summary: AHCA is entitled to repayment of two of three claims. Respondent must also pay a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case N o. 18 - 1848MPI

HCR MANOR CARE SERVICES OF

FLORIDA, LLC, d/b/a HEARTLAND

HOME HEALTH CARE,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in t his

matter on November 28 and 29, 2018 , in Tallahassee, Florida,

before Administrative Law Judge Yolonda Y. Green of the Division

o f Administrative Hearings (ÐDivision Ñ) .

APPEARANCES

For Petitioner: Brittany Adams Long , Esquire

Radey Law Firm , P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

For Respondent: Bryan K. Nowicki, Es quire

Reinhart Boerner Van Deuren , S.C.

Suite 600

22 East Mifflin Street

Madison, Wisconsin 53701 - 2018

STATEMENT OF THE ISSUE S

The issues in this case are:

1. W hether Petitioner , A gency for Health Care

Administration (ÐPetitionerÑ or ÐAHCAÑ) , is entitled to recover

Medicaid funds paid to Respondent , HCR Manor Services of

Florida, LLC, d/b/a Heartland Home Health Care and Hospice

(ÐRespondentÑ or Ð Heartland Ñ), for hospice services Re spondent

provided during the audit period between July 1, 2011 , through

December 31, 2014 ;

2. Whether Heartland should be required to pay an

administrative fine, pursuant to Florida Administrative Code

Rule 59G - 9.07 0(7)(e); and

3. T he amount of any inv estigative, legal, and expert

witness costs that AHCA is entitled to recover , if any.

PRELIMINARY STATEMENT

On June 19, 2017 , AHCA issued a Final Audit Report (ÐFARÑ)

in which it asserted that Respondent, an authorized Medicaid

ser vices provider , had been overpaid $127,015.43 for the claim

period July 1, 2011 , through December 31, 2014 (ÐAudit PeriodÑ) .

The FAR also sought to impose an admin istrative fine of

$25,403.09 ; assessed costs of $75.55 for conducting the audit ;

and sought to recover investigative , legal, and exper t witness

costs associated with this matter.

On September 1, 2017, Respondent timely requested an

administrative hearing challenging PetitionerÓs determination of

overpayments and impo sition of fines and costs. On April 9,

2018, t his ma tter was referred to the Division for assignment to

an administrative law judge. This matter was then assigned to

the undersigned.

On April 19, 2018, the undersigned scheduled the formal

hearing for August 21 through 23, 2018. On August 15, 2018, the

undersigned granted AHCA Ós Unopposed Motion to Continue Final

Hearing to enable new counsel to prepare for the hearing , and

rescheduled the hearing for October 9 and 10, 2018. Following a

conti nuance due to Hurricane Michael, t he undersigned

rescheduled t his matte r for November 28 and 29, 2018.

The parties filed a Joint Pre hearing Stipulation, which

contains facts that have been incorporated into the Findings of

Fact below, to the extent relevant.

The final hearing convened November 28, 2018 , as schedul ed.

At the final hearing, Joint Exhibits 1 through 48 were admitted

into evidence.

AHCA presented the testimony of four witnesses: Robert

Reifinger, FCCM, a program administrator of AHCAÓs Medicaid

Program Integrity program (ÐMPIÑ); Terry Satchell, th e medical

review manager for H ealth Integrity, LLC (ÐHIÑ) ; and Ibrahim

Saad, M.D., and Patrick Weston , M.D., AHCAÓs expert s in internal

medicine. Respondent presented the testimony of two witnesses:

Brian Stephens , M.D. , team physician at Heartland; and Michael

Shapiro, M.D., Heartland Ó s expert in family medicine and hospice

medicine.

The parties ordered a copy of the hearing transcript. The

two - volume Transcript was filed with the Division on

December 12, 2018. At the conclusion of the final hearing , the

parties requested a deadline of January 18, 2019, for filing

post - hearing submittals , which was granted. The parties timely

filed Proposed Recommended Orders (ÐPROsÑ). Although,

RespondentÓs P RO exceeded the page number allotment of 40 pages,

both PROs have been considered in preparation of this

Recommended Order.

Except as otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to

the 2016 versions, which were in effect during the time the

alleged o verpayments were made.

FINDING S OF FACT

Based on the evidence presented at the final hearing , the

prehearing statement, and the record in this matter, the

following Findings of Fact are made :

Parties

1. AHCA is the state agency responsible for administer in g

the Florida Medicaid p rogram. Medicaid is a joint federal/state

program to p rovide health care and related services to qualified

individuals.

2. Heartland is a provider of hospice and end - of - life

services in Florida. During the Audit Period, Heartla nd

maintained a hospice program headquartered in Jacksonville,

Florida. The program is enrolled as a Medicaid provider and has

a valid Medicaid provider agreement with AHCA.

3 . As a h ospice care provider, Heartland has an inter -

disciplinary team ("IDT"), which includes persons with medical,

psychosocial, and spiritual backgrounds to provide comfort,

symptom management, and support to patients and their families.

Each patient is reviewed in a meeting of the IDT every two

weeks.

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

voluntarily chosen to provide and be reimbursed for goods or

services provided to Medicaid recipients. As an enrolled

Medicaid provider, Heartland is subject to statutes, rules, and

Medicaid handbooks incorporated by reference into rule, which

were in effect during the Audit Period. See , e.g. , Florida

Medicaid Hospice Services Coverage and Limitations Handbook,

2007 (ÐHandbookÑ) , adopted by Fla. Admin. Code R. 59G -

4.140(2) (2007).

Audit Process

5 . T he Handbook contains six b ullet points for a physician

to consider when making a determination regarding a patientÓs

initial certification for hospice eligibility. While t hose six

bullet points pr ovide factors for consideration by the

certifying physician, each recipient is not re quired to meet

each bullet point to be eligible for hospice care .

6 . The six bullet points are as follows :

a. Terminal diagnosis with life expectancy

of six months or less if the terminal

illness progresses at its normal course;

b. Serial physician assessments,

laboratory, radiological, or other studies;

c. Clinical progression of the terminal

disease;

d. Recent impaired nutritional status

related to the terminal process;

e. Recent decline in functional status; and

f. Specific documentat ion that indicates

that the recipient has entered an end - stage

of a chronic disease.

7 . The initial certification for hospi ce applies for a

90 - day period. The patient can then be recertif ied for a second

90 - day period. Thereafter, all subsequent rece rtificat ions

apply for a 60 - day period so long as the patient meets the

requirement s to receive hospice benefits.

8 . To determine el igibility, the Handbook provides :

The first 90 days of hospice care is

considered the initial hospice election

period.

For the initial period, the hospice must

obtain written certification statements from

a hospice physician and the recipientÓs

attending physician, if the recipient has an

attending physician, no later than two

calendar days after the period begins. An

exception is if the hospice is unable to

obtain written certification, the hospice

must obtain verbal certification within two

days following initiation of hospice care,

with a written certification obtained before

billing for hospice care.

If these requ irements are not met, Medicaid

will not reimburse for the days prior to the

certification. Instead, reimbursement will

begin with the date verbal certification is

obtained.

* * *

For the subsequent election periods, written

certification from the hospi ce medical

director or physician member of the

interdisciplinary group is required.

If written certification is not obtained

before the new election period begins, the

hospice must obtain a verbal certification

statement no later than two calendar days

af ter the first day of each period from the

hospice medical director or physician member

of the hospiceÓs interdisciplinary group.

A written certification must be on file in

the recipientÓs record prior to billing

hospice services.

Supporting medical docum entation must be

maintained by the hospice in the recipientÓs

medical record.

9 . The U.S. Department of Health & Human Services,

C enters for Medicare and Medicaid Services (ÐCMSÑ) , contracted

with HI , a private vendor, to perform an audit of Heartland.

HI retained Advanced Medical Reviews (ÐAMRÑ) to provide

physician reviews of claims during the audit process in order

to determine whether the patients met the criteria for Medicaid

Services.

10 . HI notified Heartlan d of the audit on or about

June 30, 2 016. The audit was conducted between August 25, 2016 ,

and December 20, 2016.

11 . The scope of the audit was limited to Medicaid

recipients that received hospice services from Heartland during

the period of July 1, 2011, through December 31, 2014 , the Aud it

Period . T he files were identified for review using the

following criteria:

a. The recipient was not dually eligible

(eligible for both Medicaid and Medicare);

b. Heartland provided hospice services for

182 days or longer, based on the recipientÓs

first and last day of service within the

Audit Period; and

c. HI excluded recipients who had at least

one malignancy (cancer) primary diagnosis

and had a date of death less than one year

from the first date of service with

Heartland.

12 . Thus, the obje ctive of the audit was to determine

whether certain Medicaid patients were, in fact , and pursuant to

applicable law, eligible for hospice benefits provided by

Heartland.

13 . When HI applied the audit criteria to the Medicaid

claims paid by AHCA to Heartla nd, HI determined that Heartland

had provided hospice services to five Medicaid recipients for

182 days or longer during the Audit Period.

14 . To qualify for the Medicaid hospice program, all

recip ien ts must, among other things: a) b e certified by a

phys ician as terminally ill with a life expectancy of six months

or less if the disease runs its normal course; and

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

15 . HI employed claims a nalysts who performed an initi al

review of HeartlandÓs pati ent records to determine if the

recipients were eligible for Medicaid hospice benefits. All HI

claims analyst s are registered nurses.

16 . If the HI claims analyst was able to assess that the

patientÓs file contained sufficient documentat ion to justify

e ligibility for h ospice benefits for the entire length of stay

under review in the audit, there was no imposition of an

overpaymen t for that file pursuant to the audit process and ,

thus , the claim was not evaluated further.

17 . If the HI claims analyst wa s unable to assess whether

the patientÓs file contained sufficient documentatio n to

determine eligibility for h ospice benefits , or if only a portion

of the patientÓs stay could be justified by the HI claims

analyst , the file was forwarded to an peer review physician to

make the ultimate determination as to eligibility for Medicaid

hospice benefits and whether an overpayment was due the Florida

Medicaid program.

18 . HI contracts wit h peer review organizations that

provide physici ans to perform the peer rev iew. One of those

organizations was AMR , which provided peer review services for

the Heartland audit.

Heartland Audit

19. Regarding the Heartland audit , HI staff members

identified the physicians who provided care to the recipients at

Heartland. The physicians at Heartland had an active specialty

in family medicine. Because HI did not have any family

physicians on staff at the time of the audit, HI identified

physicians specializing in internal medicine. Internal medicine

was selected because the na ture of the practice involves

treatment of various medical conditions. The peer reviewers

selected to review recipient records to determine eligibility

for hospice were , to the maximum extent possible, of the same

specialty as the Heartland physicians.

2 0 . T he HI claims analyst s reviewed H eartlandÓs patient

records for five recipients and determined that no further

action was warranted with respect to two recipients. The claims

analysts were registered nurses. As a result, three files were

referred for physician peer review by AMR.

21 . AMR maintains a secure portal (ÐAMR PortalÑ) that HI

personnel access to transmit all received provider files to AMR .

AMRÓs peer review physicians use the AMR Portal to review the

totality of the providerÓs submitted d ocu mentation, including

all patient records, and provided their comments.

22 . Initially, AHCA selected Ankush Bansal, M.D. , to

review the patient files identified for physician review.

Dr. Bansal determined that all three recipients were ineligible

for h ospice services.

23 . HI prepared a Draft Audit Report (ÐDARÑ), which

identified overpayments of Medicaid claims totaling $127,015.43,

relating to three recipients. On March 7, 2017, HI presented

the DAR to Heartland for comment and response.

24 . The a lleged overpayments for the three recipients were

for the time periods as follows 1/ :

a. Patient P.C., for service dates

03/13/2012 Î 9/11/2012 .

b. Patient S.L., for servi ce dates

03/02/2013 Î 9/22/2013; and

c. Patient V.P, for service dates

11/13/2 012 Î 2/28/2014 ;

25 . During the pendency of the audit, but after the DAR

was provided to Heartland, Dr. Bansal became unavailable for

further work on the audit. Thus, AMR retained two new

physicians (Ibrahim Saad, M.D. , and Patrick Weston, M.D.) to

per form the re - reviews of the patient records.

26. After Heartland responded to the DAR, HeartlandÓs

response was provided to the two new AMR peer review physicians,

who, after reviewing HeartlandÓs response to the audit,

reevaluated the medical documentat ion in light of the additional

information and argument provided by Heartland. The new peer

reviewers, Drs. Saad and Weston, agreed with the original peer

reviewer, Dr. Bansal, that the three recipients were not

eligible for hospice services. As a result of that comment and

review process, no claims were adjusted.

27 . Once approved by CMS and AHCA, the DAR became the FAR.

The FAR set forth an overpayment amount of $127,015.43 in

Medicaid overpayments owed to AHCA based upon the three Medicaid

recipient s serviced by Heartland during the Audit Period.

28 . HI submitted the FAR to CMS. CMS provided the FAR to

AHCA with instructions that AHCA furnish the FAR to Heartland

and initiate the state recovery process.

29 . The FAR contains the determinations ma de by the AMR

peer review physicians finding that each of the three patients

identifi ed therein were ineligible for h ospice coverage as the

documentation did not support the eligibility requirement of

having a terminal illness with a life expectancy of six months

or less if the illness ran its normal course.

30 . AHCA sent the FAR to Heartland. In the Notice letter,

AHCA explained that a fine of $25,403.09 had been applied and

costs were assessed in th e amount of $75.55. The total amount

due for the alleg ed overpayment, fines , and costs was

$152,494.07.

Experts

31 . Due t o the nature of the review and re - review process,

the final hearing primarily focused on the testimony of each

parties' experts regarding whether particular recipients met the

criteria of Medicaid hospice benefit eligibility.

32 . The undersigned notes that Heartland did not offer

testimony regarding the patientsÓ eligibility from the physician

who actually evaluated the recipients in dispute or certified

any of the recipients as termina l ly ill during the Audit P eriod.

Dr. Stevens , the certifying physician for at least two of the

three patients , testified but did not offer specific testimony

a bout the respective patientsÓ Medicaid hospice eligibility.

33 . The experts presented by AHCA a nd Heartland in this

matter did not examine the recipients. F or each patient , an

AHCA and the Heartland expert reviewed the patient records and

provided an opinion as to whether the six bullet points of the

Handbook were satisfied to determine whether the recipient was

"terminally ill with a life expectancy of six months or less if

the disease runs its normal course."

34 . In performing their respective peer reviews, the peer

review physicians were instructed to use their clinical

experience and the Hand book .

35 . As set forth a bove, the Handbook, adopted by Florida

Administrative Code R ule 59G - 4.140, requires a recipient to have

a terminal diagnosis with a life expectancy of six months or

less if, the terminal disease follows its normal course in order

to be eligible for Medicaid hospice services. It also requires

that the hospice maintain documentation supporting that

prognosis at initial certification and for every

recertification.

AHCAÓs Experts

Dr. Ibrahim Saad

36 . Dr. Saad, board - cer tified in int ernal m edicine, was

actively practicing in Florida at the time of the audit.

Dr. Saad regularly sees and treats patients with liver disease

and congestive heart failure as part of his practice. Dr. Saad

reviewed and rendered his opinion as to the hospice eligibility

of two recipients in the FAR , p atients P.C. and V.P.

37 . Dr. Saad is a physician licensed under chapter 458,

Florida Statutes, who has been regularly providing medical care

and treatment within the past two years and within the two years

pri or to the audit as explained above.

38 . Dr. Saad began practicing medicine in Florida in

A ugust of 2015. Prior to practicing in Florida, he completed a

three - year residency in Michigan, during which he actively

treated patients. He was the chief r esid ent his last year of

the residency. The last two years of his medical school

consisted of clinical rotations, during whic h he actively

treated patients.

39 . In its PRO , Heartland argued that Dr. Saad did not

have Ðfive years full - time equivalent experi ence providing

dir ect clinical care to patients.Ñ However, t here is no

statutory requirement for a peer reviewer to have five years of

experience . Although attesting to the statement is a

requirement established by AMR, it has no bearing on whet her

Dr. S aad met the criteria for a peer reviewer under Florida law.

Dr. Saad qualifies as a peer reviewer under the Florida

Statutes.

40 . When weighing the testimony of Dr. Saad , the

undersigned considered material factors regarding Dr. Saad Ós

qualification s . Dr. Saad has not certified a patient as being

terminally ill. However, Dr. Saad regularly sees and treats

hospice patients and patients with end - stage diseases. Based

upon his experience, Dr. Saad understands what factors are

properly considered when estimating a patientÓs life expectancy.

Dr. Saad also routinely makes life expectancy prognostications

for his patients.

41 . Based on the factors above, Dr. Saad was accepted as

an expert in internal medicine.

Dr. Patrick Weston

42 . Dr. Weston has b een actively practi cing as a physician

since 2009, meaning he had been in practice for 10 years at the

time of the hearing. Prior to 2009, Dr. Weston completed a

three - year c ardiovascular f ellowship, and prior to that, he

completed a two - year residency in internal m edicine. Dr. Weston

often sees a nd treats patients with cancer. Dr. Weston has

referred patients to hospice. Dr. Weston reviewed and rendered

his opinion as to the hospice eligibili t y of one recipient in

the FAR, p atient S.L.

43 . Dr. Weston was board - certified in internal m edic ine in

2007. He was also board - certified in c ardiology in 2010 and

n uclear c ardiology in 2011. C ardiology is a subspecialty of

internal m edicine.

44 . Dr. WestonÓs i nterna l m edicine certification expired

on Decembe r 31, 2017. However, h e anticipates obtain ing the

certification again, and at the time of the hearing, was

planning to take the test in a few months. Although his

certification lapsed, Dr. Weston continued to activel y treat

pati ents, spending approximate ly 50 percent of his time

practicing i nternal m edicine. More importantly, t he

certification was active when he performed the audit.

4 5. Dr. Weston treats hospice patients and refers patients

to hospice on a regular basis. Based upon his experience,

Dr. Weston understands what factors are properly considered when

estimating a patientÓs life expectancy. Dr. Weston routinely

makes life expectancy prognostications for his patients.

46 . Based on the factors above, Dr. Weston was accepted as

an expert in internal medicine.

47 . When weighing the testimony of Dr. Weston , the

undersigned considered material factors regarding Dr. WestonÓs

qualifications. Dr. Weston has not certified a patient as being

terminally ill. Dr. Weston is not board - certified in hospice or

palliative care.

48 . After the audit, but before the hearing, Dr. Weston

moved to a new practice, in which he has a flexible schedule,

sometimes working no hours per week and somet imes working 60

hours per week. However, h e testified that on average, he works

about 100 hours per month.

HeartlandÓs Expert

Dr. Michael Shapiro

4 9. Dr. Shapiro attended the Ross University School of

Medicine, performed his residency at the Medical Center of

Central Georgia and Mercer University, and perf ormed a

fellowship at the University of South Florida in hospice and

palliative medicine.

5 0. Dr. Shapiro was first exposed to hospice medicine

during his residency, where there was both a palliative care

service and a hospice service. After his reside ncy, Dr. Shapiro

spent a year as a junior faculty member at Mercer University

where he performed palliative rounds on a weekly basis, in

addition to practicing both general inpatient and outpatient

medicine.

5 1. Dr. ShapiroÓs fellowship provided traini ng on both the

clinical and significant administrative aspects of hospice and

palliative medicine, as well as hospice benefit s . As part of

this training, Dr. Shapiro learned how to appropriately evaluate

patients to determine if they are eligible for the Medicaid

hospice benefit.

52 . After completing his fellowship, Dr. Shapiro began

working full time in hospice with Corn erstone Hospice

(ÐCornerstoneÑ) as a team physician. In that role, Dr. Shapiro

performed patient visits, held admission phone calls f or new

patient certifications, and perform ed other tasks as t he

physician member of the IDT. Dr. Shapiro also assessed patients

to determine whether they were eligible for the Medicaid hospice

benefit s and executed written certifications for patients who

were terminally ill and eligible for hospice benefit s .

53 . Dr. Shapiro is currently the hospice medical director

and chief medica l officer of Cornerstone . In that role, he

oversees all the physicians and hospice clinical practitioners,

and ac tively par ticipates in training .

54 . Dr. Shapiro also provides hospice physician training

to new Cornerstone employees regarding the hospice benefit

beyond the organizationÓs educational requirements.

55 . Dr. Shapiro estimates that, during his time at

Cornerst one, he has assessed well over 1,000 patients to

determine whether they have a terminal illness of six months or

less if, the illness runs its normal course. He has determined

eligibility by taking the history and performing a physical

exam ination of pati ents , as well as by evaluating a patie nt

based strictly on the medical records.

56 . Dr. Shapiro is board - certified in family medicine,

hospice and palliative medicine, and as a hospice medical

director. He also serves as the chair of the National

Partn ership for Hospice Innovation Medical Affairs Forum, which

is a collaborative group of larger , not - for - profit hospices who

focus on improving the clinical aspects of hospice.

57. Based on the findings set forth above, Dr. Shapiro was

accepted as an expe rt in hospice medicine, family medicine , and

as a hospice medical director.

58 . When weighing the testimony of Dr. Shapiro , the

undersigned took note o f several factors regarding Dr. ShapiroÓs

qualifications. Dr. Shapiro testified that during his time at

Cornerstone , he assessed more than 1,000 patients . H e also

acknowledged that Cornerstone underwent an audit in 2016 ,

similar to the one at issue in this case , while he was medical

d irector of the facility. The outcome of that audit result ed in

Corner stone being required t o pay AHCA more than $700,000 in

overpayments. While this factor does not disqualify Dr. Shapiro

as an expert, the significant overpayment is a fac tor when

weighing his testimony regarding the eligibility of recipients

for Medicaid h ospice services.

Patient Review

Patient P.C.

59 . Pati ent P.C. was a 54 - year - old fe male who was admitted

to hospice with a terminal diagnosis of end - stage congestive

heart failure on March 13, 2012 .

60 . P.C. presented with a secondary history of chr onic

obstructive pulmonary disease (asthma), GERD , and back pain.

She had been hospitalized in the prior three years and was

dependent regarding six of six activities of daily living

(ADLs), including ambulating , toileting, transfer ring , dressing,

feeding , and bathing. The claim period in question is March 13,

2012 , through September 11, 2012.

61 . At the time of admission, P.C.Ós most recent

hospitalization , on March 7, 2012 , was for a primary diagnosis

of acute renal injury, lower extremity pain , and h eadache with a

noted history of cardiomyopathy . During the admission, tests

were conducted to rule out an acute kidney injury versus chronic

kidney disease. The records noted that cardiology was only

following her for her cardiomyopathy condition . Thus, the

hospital admission was not related to her hospice - admitting

diagnosis of congestive heart failure.

62 . Prior to admission, t he most recent report from her

primary cardiologist was dated December 9, 2011. At that time,

the doctor noted that she was Ðdoing generally well from a

cardiac standpointÑ and that she Ðappears to be stable fr om a

heart failure standpoint.Ñ Moreover, i n the most recent record

from her primary electrophysi ologist, dated November 11, 2011 ,

it was noted that she had New York H e art Association (ÐNYHAÑ)

Class II symptoms .

63 . Her init ial nursing assessment on March 15, 2012,

showed that P.C. was able to ambulate 30 feet , she had no

complaints of chest pain, no edema noted, she did not need

oxygen, and she was independent with ac tivities of daily livin g.

Her ejection fraction was 20 percent at the time, her PPS was

50 percent , and her level of consciousness was not altered.

64 . T he initial nursing assessment also indicated that

P.C. was independent in all six ADLs. The follow - up assessment

five days later on March 20, 2012, noted ÐnoneÑ for the ADL

dependent category .

65 . NYHA Ós functional classification is incorporated into

the Heartland guidelines for determining prognosis for heart

disease. T he criteria for Class IV (te rminally ill) patients

with heart disease include Ðpatients with cardiac disease

resulting in inability to carry on physical activity without

discomfort. Symptoms of heart failure or of the anginal

syndrome may be present even at rest. If any physical ac tivity

is under taken, discomfort is increased.

66 . Dr. Saad testifie d that the NYHA classifications are

based primarily on the level of ambulation and whether the

patient has significant chest pain at rest. Dr. Saad testified

that a patient classifie d as being in Class II is someone with

mild symptoms with ambulation. There may be some shortness of

breat h or chest pain. P.C.Ós records reflect that she was able

to ambulate 30 feet, she did not require oxygen, and she did not

have chest pain . Based o n P.C.Ós records , she should have been

classified as a Class II cardiac patient .

67 . Although the heart disease guideline form in her

records indicated she was initially designated as NYHA Class IV,

both Dr s . Shapiro and Saad agreed that P.C. did not mee t the

criteria for NYHA Class IV, but rather, she met the criteria for

Class II.

68 . In addition, p atient P.C. was not using any oxygen

when she was admitted to hospice and she was on room air.

Dr. Saad credibly te stified that a patient with end - stage heart

failure would need to be on oxygen.

69 . During her stay in hospice, P.C.Ós PPS was 50 percent

and it increas ed to 60 percent in the second period. Her weight

fluctuated between 160 and 170 pounds. Dr. Shapiro Ós testimony

that P.C.Ós weight fluc tuation could be attributed to fluid

retention was not supported by the patient records.

70 . Based on P.C.Ós patient records, there was no t

sufficient evidence to demonstrate that she had six months or

less to live. Between the visit at which her ca rdiologist found

her to be stable and her entry into hospice, there was no

evidence of any additional complications with her heart disease.

Moreover, there was no evidence of functional decline , impaired

nutritional status , or overall p rogression of her h eart disease

during the recertification periods.

71. RespondentÓs expert noted that the patient experienced

chronic leg and back pain and had chronic opioid dependency.

However, this factor is not sufficient to support hospice

eligibility.

72 . Dr. Sha piro pointed to several factors to support his

contention that P.C. Ós condition had progressed and her

functionality had declined. During the recertification period

with dates of March 13, 2012 , through June 10, 2012 , P.C.

developed symptoms and progressi on of her underlying condition,

including, shortness of breath with ambulation, tiring easily ,

and experiencing confusion about her medications. She was

hospitalized on May 15, 2012 , where she presented with oxygen

saturations in the low 80s and a chest x - ray finding pulmonary

congestion and opacities. During the hospital stay, P.C. was

found to have anemia, with a hemoglobin measurement of 9.7.

Dr. Shapiro testified that the lowered hemoglobin increased

mortality by about 32 percent, and when coupled wi th untreated

arrhythmias and underlying stage II heart disease, P.C.Ós

mortality at one year was almost 70 percent.

73 . D uring the certified period June 11, 2012 , through

September 8, 2012 , P.C. began using supplemental oxygen for

sh ortness of breath an d fatigu e and was suffering from

orthopnea.

74 . The records reflect that P.C. was using a cane to

ambulate upon admission to hospice due to vertigo. There was

insufficien t evidence of h er nutrition al decl i ne ; her weight

fluctuated between 160 to 170 p ounds ; and her eating ranged from

25 to 75 percent . S he was also independent regarding six of six

AD Ls .

75 . During the period September 9, 2012 , through

November 7, 2012, P.C. elected to revoke hospice on

September 11, 2012, only three days into the fin al benefit

period at iss ue.

76 . The patient records do not support a finding that P.C.

met the Medica id hospice eligibility standard during the

disputed period of March 13, 2012 , through September 11, 2012.

The greater weight of the evidence supports a finding that P.C.

was not eli gib le for Medicaid services and , thus, AHCA is

entitled to recover an overpayment of $28,866.27.

Patient S.L.

77 . Patient S.L. was a 56 - year - old femal e, admitted to

hospice on March 2, 2013, with a terminal diagnosis of squ amous

cell head and neck cancer. The claim perio ds at issue are

March 2, 2013 , through Septe mber 22, 2013.

78 . Based on her patient records, it is noted that S.L.

had a history of cancer in the neck and upper lip. She had a

wide local rese ction of her upper lip to remove the cancer o n

July 28, 2011 . In May 2012 , a CT scan of her neck showed

evidence concerning cervical metastases. She then ha d a left

neck dissection on May 10, 2012.

79 . The patient records did not show any recurrence of

cancer aft er the dissection. In January 2013, her patient

records showed that she had complain ts of neck and jaw pain.

However, her appearance was noted as Ð[o ]therwise healthy

looking, well nourished, in mild distress . Ñ Upon discharge , the

recommendation was tha t she continues medications as prescribed

by the primary care physician and follow up in three months.

80 . On March 1, 2013, the day before she entered hospice,

she vis ited Shands complaining of pain in the neck on the left

side . The record noted that she is a Ðpoor historian and

emotionally unstable.Ñ The record also noted that she was

Ðsitting comfortably in the chair in no pain or distressÑ and

her vital signs were within normal limits. The report found no

evidence of the source of pain on the cli nical exam so she was

referred for a CT scan for further imaging. There was no

referral for hospice services. In fact, there is no referral

for hospice treatment by a physician in S.L.Ós records.

81 . S.L. self - reported a 20 - pound weight loss at the ti me

of admission, in addition to increased symptoms of fatigue and

shortness of breath. Dr. Shapiro testified that these symptoms,

in conjunction with metastatic cancer, demonstrated a clinical

need and appropriateness for hospice. However, there were no

records to support a current diagnosis of cancer or a 20 - pound

weight loss.

82 . The information in the records that was used to admit

S.L. for hospice services was unreliable and at times,

inaccurate. There is no evidence to support that S.L. had a

cur rent diagnosis of canc er at the time of her admission . Her

records reflect a history but no recurrence. There is no

evidence to support S.L.Ós self - reported 20 - pound weight loss at

the time of admission. The record demonstrates that within the

prior yea r, S.L. Ó s weight had a ra nge between 120 to 130 pounds.

In addition, in the initial certification assessment , the

hospice physician stated in his narrative that the cancer had

metastasized to the lungs. However, there is no evidence that

demonstrates tha t cancer was in S.L.Ós lungs and , thus, the

record does not support this statement . Further , there is a

note on the re certification document that ÐMD visit Mar 2013 pt

informed cancer has grown.Ñ However, as stated above, S.L. was

referred for a CT scan during her March 1, 2013 , visit, but

there is no mention of her cancer growing.

83 . Based on the foregoing, S.L. Ós patient records do not

support a finding that S.L. met the Medicaid eligibility

standards for hospice services.

84 . During the recerti fication period of March 3 , 2013 ,

through May 30, 2013 , S.L. was hospitalized f or a possible

overdose attempt. After this hospitalization, it was found that

S.L. was experiencing lower extremity neuropathy, in addition to

continued complaints of back and neck pain. However, n one of

these factors relate to her initial admitting diagnosis of

cancer. Fur ther, neither of the factors is noted as

comorbidities that would warrant hospice services. A C T scan

revealed nodal involvement, which Dr. Shapiro testifi ed that

literature suggests results in a 50 - percent decrease in the rate

of survival . However, follow - up testing was ordered to confirm

the nature of the nodal mass, which is not sufficient

documentation to demonstrate progression of cancer .

8 5 . S.L. ex perienced anxiety and she was becoming easily

tearful, frustrated, and paranoid. A visit to her maxillofacial

surgeon on August 20, 2013 , revealed a palpable neck mass, which

required further investigation. More im portantly, however, the

treating physici an noted that Ð [s] he has referred herself to

hospic e . . . it is not at all clear that she should be a

hospice patient at all.Ñ

86 . Both a posit r on emission tomography (Ð PET Ñ) scan

conducted on August 30, 2013 , and a biopsy performed by S.L.Ós

maxillofa cial surgeon returned negative .

87 . The medical records contained in S.L.Ós file do not

support a finding that the Medicaid hospice eligibility standard

was met during the disputed period. Based upon the greater

weight of evidence , it is determined that S.L. was not eligible

for Medicaid hospice services at the initial assessment or for

the recertification periods. As a result, AHCA is entitled to

recover an overpayment of $ 29,601.95 .

Patient V.P.

88 . Patient V.P. was a 45 - year - old male with a histo ry of

end stage liver disease with comorbidities of alcoholic

cirrhosis and Hepati ti s C. His oth er comorbidities included

esophageal varices grade III, hypertension, portal tension,

anemia, anxiety, and polysubstance abuse . The claim period at

issue is N ovember 13, 2012 , through February 28, 2014.

89 . V.P. had been admitted to the hospital seven times in

the year prior to being admitted into hospice, the most recent

of which was six weeks prior to his hospice admission. V.P. was

admitted at that tim e for acute gastrointestinal hemorrhage and

anemia due to the hemorrhage. He also had noted cirrhosis, very

low blood counts, varices, and portal hypertension. Dr. Shapiro

testified that these were significant clinical indicators of

decompensated liver c irrhosis and findings suggestive of

progressed liver disease. Based on this information,

Dr. Shapiro opined that V.P. was appr opriately admitted to

hospice.

90 . Over a month before entering hospice, V.P. had an

endoscopy, which showed grade III varice s, but no bleeding,

which meant that the disease was not active. Dr. Saad testified

that this was significant because when looking at a terminal

diagnosis, you are looking at a disease that is not responsive

to treatment.

91 . Dr. Saad testified that th e two main factors that are

considered in determin ing the function of the liver are the INR

and the albumin levels. V.P. had an international normalis ed

ratio (Ð INR Ñ) of 1.3 on October 3, 2012 , and at admission, which

is elevated and s hows that he has liv er disease, but it had not

progressed to become end stage. Similarly, a normal albumin

level is 3.5 and his was 3.0, which shows it is slightly

decreased. The lower albumin level of 3.0 suggests that V.P.

had liver disease, but that the level had not dec reased to the

point of end stage. More importantly, the

patient records reflect that V.P.Ós albumin level was 3.5 o n

September 27, 2012, and it decreased to 3.0 on September 28,

2012.

92 . According to the Heartland guidelines, an INR o f

greater than 1.5 and an a lbumin level of less than 2.5 coupled

with other indicators of progression support a diagnosis of end -

stage liver disease.

93 . During the recertification period of November 12,

2012 , through February 10, 2013 , V.P. suffered from increased

ab dominal pain requiring medication management changes,

shortness of breath on walking, dizziness with associated

elevated blood pressure, and muscle atrophy, all signs of the

severity of his underlying liver disease. V.P. also experienced

a fall on Novembe r 15, 2012. Due to these factors, Dr. Shapiro

opined that V.P. continued to be appropriate for hospice.

94 . V.P. experienced abdominal pain during the

recertification period of February 11, 2013 , through May 11,

2013 , which resulted in another me dicat ion regimen modification.

V.P. was also transferred to a skilled nursing facility due to

increased daily care needs. During this period, V.P. also began

experiencing increased anxiety and depression. V.P.Ós

laboratory findings demonstrated an elevated I NR of 1.5 from the

previous month (of 1.3), which could lead to spontaneous

bleeding. Dr. Shapiro also testified that V.P. experienced

another fall, demonstrating his general weakness and continued

functional decline.

95 . During the recertification per iod of May 12, 2013 ,

through July 10, 2013, the records show increased drowsiness and

lethargy, which were found to not be related to his medica tion

but rather to his disease. V.P. experienced increase d pain and

ineffective control near the end of May, re sulting in yet

another medication modification . V.P. also had swelling and

fluid retention in his lower extremities, which Dr. Shapiro

opined illustrated muscle mass wasting in advancing liver

disease.

96 . V.P.Ós alkaline phosphatase increased from 136 to 178,

and an ultrasound showed ascites in his abdomen, hepatomegaly,

and a renal stone. V.P. also exhibited non - verbal signs of

pain, as well as a significant and sharp increase in shortness

of breath. The shortness of breath occurred while V.P. was

s peaking and led to the presence of intermittent orthopnea,

which is commonly found in terminal liver patients and

demonstrates disease progression.

97 . V.P. had documented p ancytopenia, when combined with

swelling and fluid retention, shows an advancin g disease state

where a patient is more susceptible to infection. V.P.

experienced such an infection during this period, and he was

treated with antibiotics for cellulitis. V.P. also suffered an

additional fall in September and had continued decline in

a ppetite, consuming only 25 percent to 50 percent of his meals.

98 . On December 17, 2013, V.P. was examined by a team

physician who noted that V.P. exhibited confusion,

forgetfulness, slurred speech, muscle atrophy, frailty,

depressed mood, anxiousness, ascites, and moderate dependence in

his activities. Other hospice team members also witnessed

V.P.Ós progressive symptoms, including confusion and repetitive

speech. V.P. experienced another fall that resulted in a head

injury, followed by slurred speech and lethargy. Despite

another change in his medication, V.P.Ós clinical symptoms

progressed. He started suffering from hypoxia, abdominal

tenderness, and ascites. A chest x - ray showed congestive heart

failure. V.P. also developed a urinary tract infec tion

requiring antibiotic treatment. Dr. Shapiro testified that

these were clear findings that demonstrated V.P. was appropriate

for hospice.

99 . D uring the recertification period o f January 7, 2014 ,

through February 28, 2014, V.P. required additional nursing

needs and visits. V.P. developed crackles (persistent fluid and

congestion) in his lungs and had increased abdominal girth, at

one point measured as a 1.5 - inch increase over a two - week

period. In addition, V.P. experienced two separate falls,

su ffered from increased fatigue and weakness, and had recurrent

cellulitis (bacterial infection) . A chest x - ray dated

February 5, 2014 , showed that V.P. developed pneumonia. In the

radiology report, it is noted that the exam was overall worse

compared to t he January 1, 2014 , exam.

100. V.P. died on February 11, 2016 .

101 . Dr. Saad testified that individuals can have good

days and bad days and that they can wax and wane, but you look

at whether they return to their baseline. While, there were

some exa cerbations, or infections, each issue may have

ultimately resolved. However, V.P.Ós records , including his lab

results, x - rays which sh owed develo pment of pneumonia within

slightly more than a month, multiple reoccurring falls, a number

of infections, inc reasing ADL dependence, and worsening

confusion support a finding that V.P. was eligible for hospice

services . The evidence does not support by a preponderance of

evidence that V.P. was not entitled to hospice services and as a

result, AHCA is not entitle d to recover overpayment for

patient V.P.

Overpayment Calculation

102 . Based on the Findings of Fact above, AHCA is entitled

to recover overpayment for hospice services to P.C. and S.L. in

the amount of $58,468.22 .

Fine Calculation

103 . When calculatin g the appropriate fine to impose

against a provider, MPI uses a formula based on the number of

claims that are in violation of r ule 59G - 9.070(7)(e). The

formula involves multiplying the number of claims in violation

of the rule by $1,000 to calculate the total fine. The final

total may not exceed 20 percent of the total overpayment of

$58,468.22 , which results in a fine of $ 11,693.64.

CONCLUSIONS OF LAW

104 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of t his

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

409.913(31), Florida Statutes (2016).

105 . The burden of proof is on AHCA 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. , 670 So.

2d 932, 935 (Fla. 1996).

106 . Section 409.902 provides, in pertinent part:

(1) The Agency for Health Care

Administration is designated as the single

state agency authorized to make payments for

medical assistance and relat ed 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 program, shall be

made only on behalf of eligi ble 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

107 . To meet its burden of proof, AHCA may rely on the

audit records and report. Section 409.913(21) and (22) provide:

(21) When making a determination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider sho wing 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 patient care

episode if the addenda or modifications are

germane to the note.

(22) The audit report, supported by ag ency

work papers, showing an overpayment to a

provider constitutes evidence of the

overpayment. A provider may not present or

elicit testimony 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, goods, or

supplies, unless such acquisition, sales,

divestment, or inventory is documented by

written invoices, wri tten inventory

records, or other competent written

documentary evidence maintained in the

normal course of the providerÓs business.

A provider may not present records to

contest an overpayment or sanction unless

such records are contemporaneous and, if

re quested during the audit process, were

furnished to the agency or its agent upon

request. This limitation does not apply to

Medicaid cost report audits. This

limitation does not preclude consideration

by the agency of addenda or modifications

to a note i f the addenda or modifications

are made before notification of the audit,

the addenda or modifications are germane to

the note, and the note was made

contemporaneously with a patient care

episode. Notwithstanding the applicable

rules of discovery, all doc umentation 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.

108 . 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 improper cost reporting,

improper claiming, unacceptable practices, fraud, abuse, or

mistake.Ñ § 409.913(1)(e), F la. Stat.

109 . 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 M edicaid

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

Fla. Stat.

110 . In this case, AHCA seeks reimbursement of

overpayments based upon the lack of eligibility , in whole or in

part, of the three patients at issue. In this proceeding,

el igibility is based in part on medical necessity as determined

by peer review of the patient records.

111 . Section 409.9131(2) provides, in pertinent part:

(a) Ð Active practice Ñ means Ð a physician

must have regularly provided medical care

and treatment to patients within the past

two years. Ñ

(b) Ð Medical necessity Ñ or Ð medically

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 o f a condition that threatens

life, causes pain or suffering, 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

final arbiter of medical necessity. 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

spe cialty or subspecialty as the physician

under review. Such determination must be

based upon the information available at the

time the goods or services were provided.

(c) Ð Peer Ñ means a Florida licensed

physician who is, to the maximum extent

possible, of the same specialty or

subspecialty, licensed under the same

chapter, and in active practice.

(d) Ð Peer review Ñ means an evaluation of

the professional practices of a Medicaid

physician provider by a peer or peers in

order to assess the medical neces sity,

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 t he documentation in the

physicianÓs records is adequate.

112 . In light of the totality of all the evidence

presented in this case, and based upon the Findings of Fact

above , AHCA should recover the overpayment as modified herein.

113 . As required by t he statute, AHCA, to the Ðmaximum

extent possible,Ñ through the CMS cont r actor, used well -

qualified peer review physicians to make the critical medical

decisions in this matter. Dr. Saad and Dr. Weston, being

licensed in Florida with active practices and being experts in

their respective area, were so qualified.

11 4 . Heartland suggested at the hearing that Dr. Weston

did not qualify as a peer reviewer because he worked only part

time at the time of the hearing. Section 409.9131( 2)(a) defines

Ðactive pra cticeÑ and states that Ða physician must have

regularly provided medical care and treatment to patients within

the past 2 years.Ñ Under the plain language of the statute,

there is no requirement that the physician have worked full time

in the past years. Instead, the physician must have Ðregularly

providedÑ medical care ÐwithinÑ the past two years.

11 5 . Dr. Weston testified that the he worked an average of

over 100 hours per month seeing patie nts at his current

employment. This is suf ficient to demonst rate that Dr. Weston

regularly provided medical care and treatment to patients.

116 . Respondent alleged in its Petition that AHCA applied

unadopted rules in the audit process by providing peer reviewers

with criteria that is not supported by statute and r ule , and

calculating the fines improperly. In the Prehearing Stipulation

and at the final hearing, Heartland did not pursue this

argument. In addition, there is no evidence in the record nor

did Heartland elicit any testimony that AHCA applied any

unadop ted rule in any regard in this matter. T he evidence in

the record supports the finding that AHCA complied with and

utilized the applicable statutes, rules , and the Handbook, duly

adopted by rule throughout the process. The physicians based

their opinions on their review of records and clinical

experience. Therefore, those allegations will not be further

addressed in this O rder. Section 120.57(1)(e), Florida

Statutes, does not apply to this proceeding.

117 . Section 409.913(16) requires AHCA to impose a fine

for each violation of subsection (15) of up to $5,000 per

violation. Rule 59G - 9.070(7 ) further outlines AHCAÓs authority

and states:

Sanctions: In addition to the recoupment

of the overpayment, if any, the Agency will

impose sanctions as outlined i n this

subsection. Except when the Secretary of

the Agency determines not to impose a

sanction, pursuant to Section

409.913(16)(j), F.S., sanctions shall be

imposed as follows:

* * *

(e) For failure to comply with the

provisions of the Medicaid laws: For a

first offense, $1,000 fine per claim found

to be in violation.

118. Notwithstanding the provisions of rule 59G - 9.070(7),

rule 59G - 9.070(4)(a) provides, in pertinent part, that:

(4) Limits on sanctions.

(a) Where a sanction is applied for

vi olations of Medicaid laws (under paragraph

(7)(e) of this rule), . . . and the

violations are a Ðfirst offenseÑ as set

forth in this rule, if the cumulative amount

of the fine to be imposed as a result of the

violations giving rise to that overpayment

exce eds 20% of the amount of the

overpayment, the fine shall be adjusted to

20% of the amount of the overpayment.

119 . As indicated in the Findings of Fact above, Heartland

violated the pr ovisions of section 409.913(15) by admit ting and

recertifying patients who were not eligible for Medicaid hospice

services.

120 . Each monthly period that Heartland billed for

services for these patients that were determined to be

ineligible for Medicaid reimbursement, Heartland is liable for a

$1 , 000 fine, save for the pro vision of r ule 59G - 9.070(4)( a),

that caps the fine at 20 percent of the overpayment. The fine

of $ 11,693.64 , as modified in the Findings of F act above and per

the fine worksheet provided by AHCA is appropriate in this case.

121 . AHCA reserved its right t o amend its cost worksheet

in this matter and, p ursuant to section 409.913(23) , to file a

request with the undersigned to seek all investigative and legal

costs, if it prevailed. Because it has prevailed regarding two

of the three claims , this tribunal re s erves jurisdiction to

enter an O rder on costs. AHCA is ordered, with in 30 days of the

date of this O rder, to serve Heartland and provide the

unders igned with its evidence of the investigative, legal, and

expert witness costs it incurred in this proceedin g. If

Heartland d isputes this evidence, it shall have 10 days

thereafter to file a pleading to contest AHCAÓs claim.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administr ation enter a final order directing Heartland to pay

$ 58, 468.22 for the claims found to be overpayments and a fine of

$ 11, 693.64 . The undersigned reser ves jurisdiction to award

investigative, legal , and expert witness costs.

DONE AND ENTERED this 7th d ay of March , 2019 , in

Tallahassee, Leon County, 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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of March , 2019 .

ENDNOTE

1/ For confid entiality reasons, including HIPPA requirements,

the patients in dispute are referenced in the Findings of Fact

by th e first letter of the first and last name of the patient.

COPIES FURNISHED:

Steven Alfons Grigas, Esquire

Akerman, LLP

Suite 1200

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Joseph G. Hern, Esquire

Agency for Health Care Administratio n

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Bruce D. Platt, Esquire

Akerman, LLP

Suite 1200

106 East College Avenue

Tallahassee, Florida 32301

(eServed)

Kimberly Murray, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Bryan K. Nowicki, Esquire

Reinhart Boerner Van Deuren, S.C.

Suite 600

22 East Mifflin Street

Madison, Wisconsin 53701 - 2018

(eServed)

Joshua D. Taggatz, Esquire

Reinhart Boerner Van Deuren, S.C.

Su ite 600

22 East Mifflin Street

Madison, Wisconsin 53701 - 2018

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administrat ion

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

( eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health C are Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 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 Order should be filed with the agency that

will issue the Final Order in this case.