19-003229MPI Agency For Health Care Administration vs. Advanced Behavioral Association, Llc Status: Closed Recommended Order on Wednesday, November 20, 2019.

Summary: Provider required to repay Medicaid overpayment after AHCA proved five employees were ineligible to provide behavior analysis services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Petitioner ,

Case No. 19 - 3229MPI

vs.

ADVANCED BEHAVIORAL ASSOCIATION,

LLC ,

Respondent .

/

RECOMMENDED ORDER

The case came before Administrative Law Judge June C.

McKinney of the Division of Administration Hearings ( " DOAH " ) for

final hearing on October 7, 2019, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kimberly Murray, Esquire

Ryan Mc Neill, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Varinia F. Cabrera, Psy.D. , pro se

Advanced Behavioral Asso ciation, LLC

7925 Northwest 12th Street, Suite 118

Doral, Florida 33216 - 1820

STATEMENT OF THE ISSUE S

Whether five employees meet the required criteria to be

eligible to provide behavior analysis services ; and , if not, wh at

is the Medicaid overpayment amount Respondent owes to Petitioner.

PRELIMINARY STATEMENT

Petitioner , Agency for Health Care Administration ( " AHCA " ) ,

conducted a Medicaid audit of Respondent, Advanced Behavioral

Association , LLC ( " ABA " or "Respondent" ), a Medicaid provider.

The Medicaid audit reviewed Respondent ' s dates of service from

November 1, 2017, through July 31, 2018. On or about April 30,

2019, AHCA issued a Final Audit Report ( " FAR " ) dated April 18,

2019, which advised Respondent it had been ov erpaid by the amount

of $852,043.63 for paid claims that, in whole or in part, the

Medicaid program did not cover.

AHCA initiated this action to recover the amount of the

overpayment. AHCA also sought to sanction Respondent in the form

of an administrativ e fine, as well as recover investigative costs

for conducting the Medicaid audit.

Respondent filed a p etition for a f ormal a dministrative

h earing to dispute the factual allegations of the audit and to

request a formal hearing to address the allegations. On June 13,

2019, the case was then referred to DOAH. The hearing was

continued on July 18, 2019, and ultimately rescheduled to

October 7 through 9, 2019. The hearing was held on October 7,

2019.

Following the issuance of the FAR, AHCA reduced the

overpa yment amount to $207,082.92 and alleged sanctions and costs

in the amount of $2,500.00.

On October 2, 2019, the parties stipulated to facts in the

Joint Pre - hearing Stipulation, and the relevant facts stipulated

therein are accepted and made part of the Fi ndings of Fact below.

At hearing, Petitioner presented the testimony of two

witnesses: Robi Olmstea d , AHCA a dministrator; and Jennifer

Ellingsen, Medicaid health program analyst. Petitioner ' s

Exhibits 1 through 27 were admitted into evidence. Respondent

testified on her own behalf. Respondent ' s Exhibits A through O

were admitted into evidence.

The proceedings of the hearing were recorded and

transcribed. A one - volume Transcript of the hearing was filed at

DOAH on October 22, 2019. Both parties timely filed proposed

recommended orders which were duly considered in the preparation

of this Recommended Order.

Unless otherwise indicated, all statutory references are to

the codification in effect at the time of the alleged

overpayment.

FINDING S OF FACT

1. A HCA is designated as the single state agency authorized

to make payments for medical assistance and related services

under Title XIX of the Social Security Act, otherwise known as

the Medicaid program. See § 409.902(1), Fla. Stat.

2. As part of its duti es, AHCA oversees and administers the

Florida Medicaid Program and attempts to recover Medicaid

overpayments from Medicaid providers.

3. At all times material to this case, ABA was licensed

to provide healthcare services to Medicaid recipients under

a con tract with AHCA as a Medicaid provider. As provider

number 019514000, ABA participated in the Medicaid program from

November 1, 2017, through July 31, 2018 ( " audit period " ).

4. AHCA ' s Bureau of Medicaid Program Integrity ( " MPI " ) is

the unit within AHCA t hat oversees the activities of Florida

Medicaid providers and recipients. MPI ensures that providers

abide by Medicaid laws, policies, and rules. MPI is responsible

for conducting audits, investigations, and reviews to determine

possible fraud, abuse, ov erpayment, or neglect in the Medicaid

program. See § 409.913, Fla. Stat.

5. ABA signed a provider agreement and agreed to abide by

the handbook and policies. As a Medicaid provider, ABA was

subject to the enacted federal and state statutes, regulations,

rules, policy guidelines, and Medicaid handbooks incorporated by

reference into the rule, which were in effect during the audit

period.

6. Behavior analysis is a treatment that improves the lives

of those individuals with mental health conditions such as

developmental and intellectual disabilities. Up until

approximately 2014, behavior analysis services had been covered

under the developmental disabilities waiver program.

7. In October 2017, the Florida Medicaid Behavior Analysis

Services Coverage Pol icy ( " Handbook " ) was promulgated, which

placed the services under the state plan, expanded the

population, and detailed the eligibility categories and criteria

to provide behavior analysis services.

8. This case arose when MPI decided to audit all the

Med icaid behavior analysis service providers. AHCA reviewed the

employee qualifications for every enrolled behavior analysis

provider. After the review, approximately 600 audit cases were

opened.

The Preliminary Audit and Final Audit

9. ABA was one of the providers MPI reviewed. On

December 6, 2017, MPI issued ABA a request for records seeking

supporting documentation about the qualifications of employees

providing behavior analysis services.

10. ABA submitted the first set of employees ' records in

resp onse to AHCA ' s request the same month.

11. Karen Kinzer ( " Kinzer " ), investigative analyst, was

assigned to oversee and conduct ABA ' s employee eligibility

determination audit. On or about September 14, 2018, Kinzer

reviewed the billing logs and requested additional employee

records, which ABA then submitted.

12. Kinzer reviewed each ABA employee and their behavior

assistant qualifications based on the requirements of the

Handbook.

13. Rules applicable to the claims reviewed in this case

are enumerated in the Handbook and include the following

requirements in policy 3.2:

Behavior assistants working under the

supervision of a lead analyst and who meet

one of the following:

- Have a bachelor ' s degree from an accredited

university or college in a related hu man

services field; are employed by or under

contract with a group, billing provider, or

agency that provides Behavior Analysis; and,

agree to become a Registered Behavior

Technician credentialed by the Behavior

Analyst Certification Board by January 1,

20 19.

- Are 18 years or older with a high school

diploma or equivalent; have at least two

years of experience providing direct services

to recipients with mental health disorder,

developmental or intellectual disabilities;

and, complete 20 hours of documente d in -

service trainings in the treatment of mental

health, developmental or intellectual

disabilities, recipient rights, crisis

management strategies and confidentiality.

14. Kinzer determined that overpayments were made to ABA

because numerous behavior a nalysis services had been performed by

ineligible employees, which were not covered by Medicaid.

15. Kinzer prepared the Preliminary Audit Report ( " PAR " )

after reviewing ABA ' s employee records and conducting an audit of

paid Medicaid claims for behavior analysis services to Medicaid

recipients.

16. MPI issued the PAR dated November 26, 2018. The report

detailed the Medicaid policy violations, overpayment amounts, and

provided ABA the opportunity to submit additional documentation

for consideration. Th e overpayment amount totaled $1,215,281.09 ,

and the report also notified ABA that a n FAR would be issued

identifying the amount of overpayment due.

17. Each time ABA supplied additional records, MPI reviewed

the supporting documentation provided from the employment files

to evaluate if the employees met the minimum qualifications to

perform behavior analysis services pursuant to policy 3.2.

18. On February 11, 2019, MPI issued an Amended Preliminary

Audit Report ( " APAR " ) that reduced ABA ' s overpayment amo unt

to $977,539.52. Attached to the APAR was a list of specific

employees who were ineligible to perform behavioral analysis

services. The list also detailed how much billing was credited

to each of the ineligible employees. The APAR allowed ABA the

opp ortunity to submit additional documentation for consideration.

19. On April 18, 2019, AHCA concluded the audit and issued

a n FAR on or about April 30, 2019, alleging that Respondent was

overpaid $852,043.63 for behavior analysis services that were not

co vered by Medicaid. The overpayment was calculated based on the

determination that 20 ABA employees were ineligible according to

policy 3.2 of the Handbook.

20. The FAR included employee overpayment and claim reports

as well as claim bills by ABA for the 20 ineligible employees.

Also listed was the total amount for the audit period.

21. AHCA informed ABA by the FAR that it was seeking to

impose a fine of $172,908.73 and costs in the amount of $461.50

for a total amount of $1,025,413.86. An additiona l fine of

$2,500.00 as a sanction was also included.

22. Additionally, the FAR detailed ABA ' s violations in

Finding 1, which stated , in pertinent part:

The Florida Medicaid Provider General

Handbook, page 1 - 2, states that only health

care providers that meet the conditions of

participation and eligibility requirements

and are enrolled in Medicaid Behavior

Analysis Services Coverage Policy, Rule 59G -

4.125, F.A.C., Section 3.0, states that

providers must meet the qualifications

specified in this policy in o rder to be

reimbursed for Florida Medicaid BA [behavior

analysis] services. Payments for Florida

Medicaid Behavior Analysis Services rendered

by an individual determined not to meet the

qualifications or for whom documentation was

insufficient to determin e eligibility are

considered an overpayment.

23. After the April 18, 2019, FAR was issued , 15 of ABA's

employees obtained their registered behavior technician ("RBT")

certifications, which made them eligible under policy 3.2. AHCA

reduced the number of ineligible ABA employees from 20 . After

the reduction , MPI concluded that five ABA employees still did

not meet the minimum legal requirements to perform behavior

assistant services during the audit period under policy 3.2.

Employee No. 1

2 4 . MPI discove red ABA violated policy by billing Medicaid

$3,803.28 for behavior analysis services conducted by Erica del

Sodorro Lebron Diaz ( " Lebron Diaz " ). Lebron Diaz ' s computer

engineering degree failed to be in the required human services

field. Additionally, sh e neither had a n RBT certificate nor had

two years ' experience providing direct services to recipients

with mental health disorders, developmental or intellectual

disabilities ( " target population " ). Instead, Lebron Diaz only

had one month direct service e xperience in 2019 as a home health

aide that could be verified.

Employee No. 2

2 5 . MPI discovered ABA violated policy by billing Medicaid

$44,737.30 for behavior analysis services conducted by Herman

Chavez ( " Chavez " ). Chavez lacks a bachelor ' s degree, d oes not

have an RBT certificate, and his work history only had nine

months ' work experience with the required target population,

which is 15 months short of the minimu m requirements of the

Handbook.

Employee No. 3

2 6 . MPI discovered ABA violated policy b y billing Medicaid

$79,551.14 for behavior analysis services conducted by

Mairelis Gonzalez Rodriguez ( " Rodriguez " ). Rodriguez lacks a

bachelor ' s degree and has a high school diploma, but does not

have a n RBT certificate and does not have the two years ' w ork

experience with the required target population.

Employee No. 4

2 7 . MPI discovered ABA violated policy by billing Medicaid

$44,737.30 for behavior analysis services conducted by Nury Grela

Dominguez ( " Dominguez " ). Dominguez lacks a bachelor ' s degree a nd

has a high school diploma , but does not have a n RBT certificate.

She also does not have two years of work experience with the

target population .

Employee No. 5

2 8 . MPI found ABA violated policy by billing Medicaid

$48,272.40 for behavior analysis serv ices conducted by Yoiset

Orive ( " Orive " ). Orive neither has a bachelor ' s degree nor the

RBT certificate that is required with a high school diploma.

Additionally, she only has 19 months ' direct work experience with

the target population instead of the re quired 24 months.

Hearing

29. At the final hearing, the parties announced and

stipulated that only five ABA employees ' , Lebron Diaz, Chavez,

Rodriguez, Dominguez, and Orive's ("disputed employees") ,

eligibility is contested for the determination of Medica id

overpayment in this matter. AHCA is seeking an overpayment of

$207,082.92 and sanctions and costs in the amount of $2,500.00

for the disputed employees.

30. At hearing, Jennifer Ellingsen ( " Ellingsen " ), AHCA ' s

Medicaid health program analyst, testifie d that she was assigned

ABA ' s case after Kinzer retired. Ellingsen worked for AHCA as an

analyst on audits of Medicaid providers for 12 years.

31. Ellingsen reevaluated the eligibility of the disputed

employees. During her review, Ellingsen assessed all the records

supplied by ABA. She looked at the complete employment files of

the disputed employees including applications, resumes, and

references. She also attempted to verify credentials by calling

references when the employee files did not contain th e required

information.

32. During the review, Ellingsen researched previous

employers listed on the resumes to confirm periods of employment

and whether work duties were with the required target population.

Some letters of reference were character ref erences, which she

was not able to use toward eligibility because the letters did

not relate to work history.

33. Ellingsen also faced challenges verifying backgrounds

for the disputed employees when some phone numbers were not in

service, she could not find current numbers or locations for the

entity listed, or people did not return her calls. Several of

the employee reference letters also failed to have any notation

that Respondent attempted to verify the letters. Ellingsen made

numerous attempts to verify that each of the disputed employees

had previously worked with the target population, but was unable

to confirm the two years ' direct care service for all of the

disputed employees.

34. Ellingsen credibly summarized the verification process,

backgr ound research results, and concluded that each of the

disputed employees were ineligible to perform behavior analysis

services because they did not meet the criteria in policy 3.2.

She testified that the disputed employees ' ineligibility was

because all f ive lacked college degrees in a human services -

related field, none had RBT certifications, and each lacked the

verifiable two years of direct care services experience with the

target population, which the Handbook required.

35. Ellingsen added up ABA ' s Me dicaid overpayments owed

from the disputed employees for a total of $207,082.92.

36. At hearing, Robi Olmstead ( " Olmstead " ) explained that

section 409.913 , Florida Statutes, and Florida Administrative

Code Rule 59G - 9.070(7) require that sanctions be appli ed in the

amount of $1,000 .00 per claim, which would have been over

approximately $ 3,000,000.00 in this case. However, Olmstead

testified that , in this case , AHCA implemented the cap that

reduced ABA ' s s anctions and cost s to $2,500.00.

37. Respondent , Va rinia Cabrera ( " Cabrera " ), ABA owner,

testified that she interviewed and checked the references of all

of the disputed employees. Cabrera believed that each of the

disputed employees met the requirements of policy 3.2 before she

hired them to perform beha vior analysis services at ABA.

38. Cabrera also maintained that since AHCA provided each

of the disputed employees in question with a Medicaid Provider ID

number , she believed AHCA had also validated and approved the

disputed employees to work for her per forming behavior analysis

services.

39. A Medicaid Provider ID number is a number assigned to

employees and contractors of Medicaid providers to track and bill

for claims. The provision of a Medicaid Provider ID number does

not substitute for any Medica id provider ensuring that its

employees or subcontractors have the required credentials to

perform the services to which they are billing.

CONCLUSIONS OF LAW

40. DOAH has jurisdiction over the subject matter of this

proceeding and the parties thereto purs uant to s ections 120.569

and 120.57(1), Florida Statutes (2019).

41. AHCA is empowered to " recover overpayments and impose

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

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

Medi caid program whether paid as a result of inaccurate or

improper cost reporting, improper claiming, unacceptable

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

Stat.

42. As the party asserting the overpayment, AHCA bears the

burden of proof t o establish the alleged overpayment by a

preponderance of the evidence. Southpoint e Pharmacy v. Dep ' t of

HRS , 596 So. 2d 106, 109 (Fla. 1st DCA 1992).

43. Section 409.913(7)(e) details a provider ' s

responsibility when filing a Medicaid claim and states , in

pertinent part:

(7) When presenting a claim for payment

under the Medicaid program, a provider has an

affirmative duty to supervise the provision

of, and be responsible for, goods and

services claimed to have been provided, to

supervise and be responsible for preparation

and submission of the claim, and to present a

claim that is true and accurate and that is

for goods and services that:

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accordance with f ederal, state, and local

law.

44. In this case, AHCA established and proved by a

preponderance of the evidence that it paid ABA for claims that

failed to comply with the Handbook. The evidence demonstrates

that the disputed employees were ineligible to provide behavior

analysis services. Consequently, AHCA is entitled to

reimbursement for the improper claims.

45. Applying the foregoing principles to the F indings of

F act contained herein, the undersigned concludes that Respondent

was overpaid with resp ect to the following disputed employees:

• Employee No. 1: $3,803.28

• Employee No. 2: $44,737.30

• Employee No. 3: $79,551.14

• Employee No. 4: $30,718.80

• Employee No. 5: $48,272.40

ABA ' s overpayment totals $207,082.92.

46. Section 409.913(11) mandates that repayment is a

provider ' s responsibility when filing an inappropriate Medicaid

claim and states , in pertinent part:

(11) The agency shall deny payment or

require repayment for inappropriate,

medically unnecessary, or excessive goods or

services from the person furnishing them, the

person under whose supervision they were

furnished, or the person causing them to be

furnished .

47. Accordingly, AHCA prevails in its claim to seek

reimbursement of the overpayment in the amount of $207,082.92 for

the disputed employees and the $2 , 500.00 for sanctions and costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusi ons of

Law, it is RECOMMENDED that the Agency f or Health Care

Administration enter a final order directing Advanced Behavioral

Association , LLC , to repay $207,082.92 for the claims found to be

overpayments and $2 , 500.00 in sanctions and costs.

DONE AND ENT ERED this 20th day of November , 2019 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

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 20th day of November, 2019 .

COPIES FURNISHED:

Varinia F. Cabrera, Psy . D.

Advanced Behavioral Association, LLC

7925 Northwest 12th Street , Suite 118

Doral, Florida 33216 - 1820

(eServed)

Kimberly Murray, Esquire

Ryan McNeill, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Flori da 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.