Tag Archives: Agency for Health Care Administration

A New Year Means New Audits and Site Visits for Assisted Living Facilities – Protect Yourself Now

00011_RT8By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

For Assisted Living Facilities (ALFs) in Florida, it’s time to do a little brushing up on your compliance material.

Beginning in January 2015, the Agency for Health Care Administration (AHCA), Office of Inspector General (OIG), Bureau of Medicaid Program Integrity (MPI), will conduct site visits to determine compliance with the Florida Medicaid Provider General Handbook and the Assistive Care Services Coverage and Limitations Handbook. This is just one of several initiatives aimed at ALFs to curtail fraud, waste, and abuse in the Florida Medicaid program.

Be Prepared.

The goal of a site visit is to determine if providers are rendering and documenting required services; to determine if assistive care services are being rendered by qualified and properly trained staff; to identify quality of care/environmental issues; and, to document and report ALF providers’ deficiencies to any managed care organizations with which the ALF is contracted.

According to the Florida Assisted Living Association (FALA), the majority of MPI sanctions concerning these fines are associated with the failure to have the following completed forms on file for each resident:

1. AHCA Form 1823 – The Health Assessment
2. AHCA Form 035 – The Certification of Medical Necessity
3. AHCA Form 036 – Medicaid Service Plan

Knowing is Half the Battle.

This announcement shows that the government will continue rigorous and thorough enforcement efforts this year. ALFs should consider this a fair warning to get supporting documentation in order. If you’re worried your ALF may not be in compliance, we suggest getting a compliance assessment. If your ALF is being audited we always suggest contacting an experienced health law attorney immediately. For general tips on how to respond to a Medicaid audit, click here for a previous blog.

Comments?

Did you know about these anti-fraud initiatives? Do you feel like your ALF is prepared for a site visit? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Representing Assisted Living Facilities.

The Health Law Firm and its attorneys represent assisted living facilities (ALFs) and ALF employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1999-2015 The Health Law Firm. All rights reserved.

Governor Requests the Agency for Health Care Administration to Inspect Florida’s VA Hospitals

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In response to recent deaths at Veterans Affairs (VA) hospitals throughout Florida and the rest of the nation, on April 1, 2014, Governor Rick Scott wrote a letter to the Florida Agency for Health Care Administration (AHCA) requesting the agency begin inspecting VA hospitals in the Sunshine Health Network. This network under investigation includes Florida, south Georgia, Puerto Rico and the U.S. Virgin Islands. So far the VA has denied AHCA any permission to inspect its hospitals, and it is unclear whether the federal government will allow such inspections moving forward.

To see a copy of the Governor’s letter to the AHCA, click here.

Governor Scott Wants Answers in Patient Death Cases.

According to The Tampa Bay Tribune, Governor Scott wants answers in regard to the deaths of five patients in the VA region serving Florida. It was reported in March 2014, that five cancer patients died and nine others sustained injuries because of delays in diagnosis or treatment. The Tampa Bay Tribune report states that the delays were less than a year but more than 90 days. So far, VA officials have not said at which hospitals the deaths occurred, which concerns Governor Scott. Through AHCA’s investigation he hopes to determine where the deaths took place, how the U.S. Department of Veterans Affairs is going to ensure the quality of care for veterans improves, and how the federal government can increase transparency on the quality of care in VA hospitals.

Click here to read the entire article from The Tampa Bay Tribune.

AHCA Agents Booted from One Florida VA Hospital.

Two days after Governor Scott’s letter was sent to AHCA, two agency inspectors were allegedly denied access to records at the VA Medical Center in Riviera Beach, Florida, according to the Palm Beach Post. The inspectors were told an official response would be provided from the VA’s national office in Washington, D.C. One VA spokeswoman stated that the VA will cooperate with AHCA, but could not do so on the specific day of AHCA’s inspection.

To read the entire article from the Palm Beach Post, click here.

It is not yet known how the VA will work with AHCA in regards to inspections. Check our blog regularly for updates.

Florida’s Lack of Legal Authority and Federal Supremacy.

Governor Scott apparently has forgotten that the state lacks authority over federal facilities and federal agencies. The federal government and its laws and regulations are superior to and take precedence over any state laws, regulations or authorities. This is a key principle of our constitutional government in the United States of America.

I am sensitive to such issues having personally lived through times when state governors “stood up to” the federal government while trying to keep public schools from being desegregated during the Civil Rights Era. The “states rightists” lost that battle like Governor Scott is likely to lose this battle.

As a lawyer friend of mine used to say in reference to similar conflicts between state and federal authorities, “I seem to recall that we fought a war about this issue some time in the past and the South lost.”

I doubt that Governor Scott is ignorant of the law. I also doubt that the VA or any other federal agency is likely to give up its autonomy to kowtow state officials. I believe it is most likely that Governor Scott is merely grand standing to make a show that may appeal to state right advocates and veterans as part of his campaign for reelection. But, of course, this is just my personal opinion.

Contact a Health Law Attorney Experienced in the Representation of Veterans Administration (VA) Physician Representation and Military Physician Representation.

The attorneys of The Health Law Firm have represented physicians, psychologists, nurse practitioners, nurse and other health professionals working in Veterans Administration medical centers and clinics throughout the United States. Representation has included personnel and employment issues, disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

What do you think of Governor Scott’s request for answers? Why do you think the AHCA agents were denied access? Please leave any thoughtful comments below.

Sources:

Scott, Rick. Letter from Governor Rick Scott to Ms. Elizabeth Dudek at the Florida Agency for Health Care Administration. (April 1, 2014). From: http://www.flgov.com/wp-content/uploads/2014/04/SKMBT_C35314040107040.pdf

Altman, Howard. “Gov. Scott Asks Answer in VA Hospital Deaths.” The Tampa Bay Tribune. (April 1, 2014). From: http://tbo.com/list/military-news/gov-scott-wants-inspection-of-federal-hospitals-20140401/

Bennett, George. “Turf War Escalates as 2 Florida Health Care Inspectors ‘Escorted Out’ of VA Hospital, Official Says.” Palm Beach Post. (April 3, 2014). From: http://www.postonpolitics.com/2014/04/turf-war-escalates-as-2-florida-health-care-inspectors-escorted-out-of-va-hospital-official-says/

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

AHCA Expert Not Allowed to “Use His Discretion” in Deciding Claims Were Improper in Medicaid Appeal Hearing

FACTS: The Agency for Health Care Administration’s (“AHCA”) Office of Medicaid Program Integrity audited Dr. Rao, an authorized provider of Medicaid services, for claims between July 1, 2007, and June 30, 2009, and found him to be in violation of certain Medicaid provider policies. AHCA prepared a Final Audit Letter on June 1, 2011, notifying Dr. Rao that he had been overpaid by the Medicaid program by $110,712.09 for services provided during the audit period. Dr. Rao’s administrative hearing challenging AHCA’s overpayment determination was pending before DOAH. On August 17, 2012, Dr. Rao filed an unadopted rule challenge, alleging that AHCA’s overpayment determination was based on unadopted rules regarding the medical necessity of long-term monitored electroencephalograms (LTM EEGs).

OUTCOME: The ALJ found that AHCA’s peer review expert applied certain standards to the Medicaid claims he examined in conducting the Medicaid audit, but “exercised his discretion as to whether to apply them based on the specifics of each patient’s medical records.” The ALJ dismissed the unadopted rule challenge, explaining that “where application of agency policy is subject to the discretion of agency personnel, the policy is not a rule. . . . The medical standards at issue in this case are not self-executing and require the exercise of discretion in their application.” The ALJ noted that “the medical standards of practice must be applied on a case-by-case basis to determine whether the services provided were medically necessary, and provided both an appropriate level of care and standard of care ‘customarily furnished by the physician’s peers and to recognized health care standards” as required by section 409.9131(2)(d), Florida Statutes.

Source:

Radhakrishna K. Rao et al. v. AHCA, DOAH Case No. 12-2813RU (Final Order Aug. 20, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.

Invoking Fifth Amendment by Applicant’s Personnel May Result in Denial of Their Application for a License

The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter

FACTS: The Agency for Health Care Administration (“AHCA”) denied Avalon Assisted Living III’s (“Avalon III”) application for licensure of an assisted living facility in Orlando. Avalon III challenged the denial, and the case was referred to DOAH for a formal hearing. During AHCA’s attempts to obtain discovery, two people closely associated with Avalon III (Mr. Robert Walker and Mrs. Chiqquittia Carter-Walker) invoked their Fifth Amendment privilege against selfincrimination in response to questions regarding the grounds stated by AHCA in its initial decision to deny the license. These areas of inquiry included alleged unlicensed activity, the ownership and control of Avalon III, and Avalon III’s lease on the facility sought to be licensed. Based on Avalon III’s failure to provide any relevant information during three discovery depositions, AHCA filed a Motion to Dismiss on September 16, 2013. In an Order issued on September 27, 2013, the ALJ stated that dismissal of Avalon III’s petition and denial of its licensure application would be an appropriate sanction. However, in an abundance of caution, the ALJ gave Avalon III one more chance to have the Walkers answer deposition questions without invoking the Fifth Amendment. Avalon III responded to the Order by filing a notice that the Walkers would answer deposition questions regarding ownership and the lease without invoking the Fifth Amendment. Conspicuously absent from the notice was any assurance the Walkers would answer questions about the alleged unlicensed activity.

OUTCOME: The ALJ issued an Order recommending that AHCA deny Avalon III’s application. In contrast to licensure disciplinary cases in which the agency has the burden of proof, Avalon III had the burden of proving entitlement to licensure, and the Walkers were the only people with knowledge of the relevant issues. Accordingly, their refusal to answer deposition questions left Avalon III “in an untenable position,” preventing Avalon III from proving its entitlement to licensure.

Source:

Avalon’s Assisted Living III, LLC v. Agency for Health Care Administration, DOAH Case No. 09-6342 (Recommended Order Oct. 9, 2013).

About the Author: The foregoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative law Section of The Florida Bar.

Appeal Court Rules AHCA Was Justified in Withdrawing Home Health Agency’s License Application

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The First District Court of Appeal has ruled that the Agency for Health Care Administration (AHCA) had substantial justification to withdraw a home health agency’s application for licensure in a recent case. To view the opinion, click here.

Home Health Agency Challenged AHCA’s Decision to Withdraw Application.

AHCA withdrew the home health care facility’s license application because the application allegedly contained insufficient information. The application did not provide enough information for AHCA to verify actual ownership of the facility.

The home health agency challenged AHCA’s decision. The administrative law judge (ALJ) ruled that AHCA incorrectly withdrew the application. According to the ALJ, the application was complete, and the home health agency met all the requirements for licensure at the time the application was submitted. To view the recommended order, click here.

Home Health Agency Awarded Attorney’s Fees by ALJ.

After receiving this favorable order, the home health agency moved for attorney’s fees pursuant to section 57.111(4)(a), Fla. Stat. The home health agency argued that AHCA had no justification for withdrawing its license application. At a separate hearing, the ALJ awarded attorney’s fees to the home health care facility.

Appeal Court Reverses ALJ’s Ruling.

AHCA appealed this decision. On its license application, the home health agency had allegedly claimed that one person had sole ownership of the facility. However, a letter informing AHCA of litigation contesting the sole ownership claim was included with the license application. According to the court of appeal, given the uncertainty the home health agency created concerning its ownership, there was substantial justification for AHCA’s action. The ALJ’s ruling was reversed by the court of appeal.

Contact Health Law Attorneys Experienced in Home Health Agency Cases.

The Health Law Firm and its attorneys represent home health agencies and home health agency employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources Include:

Agency for Health Care Administration v. MVP Health, Inc. 74 So. 3d 1141 (Fla. 1st DCA 2011)

Smallwood, Mary F. “Attorney’s Fees.” Administrative Law Section Newsletter. (Apr. 2012).

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Orlando-based Assisted Living Facilities Appeal ALJ Decision, Win Case Against AHCA

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Two related assisted living facilities (ALFs) based in Orlando won a case against the Agency for Health Care Administration (AHCA) on appeal. The First District Court of Appeal heard the case and filed an opinion in favor of the ALFs on November 30, 2011.

 To view the opinion in this case, click here.

Appeals Court Dismissed Three Complaints Made by AHCA.

On appeal, the ALFs challenged a final order issued by AHCA. The amended final order revoked the ALFs’ licenses, denied their licensure renewal applications, and imposed administrative fines. 

After conducting an investigation, AHCA filed a four count administrative complaint. The court of appeal dismissed AHCA’s conclusion that the first three counts were proven. The appeal court dismissed these counts because they consisted of uncorroborated hearsay.

AHCA Alleged ALFs’ Owners Operated Third Facility Without a Valid License.

The fourth count against the ALFs alleged that the ALFs’ owners/administrators operated a third Florida facility without obtaining a valid license or qualifying for a license exemption. The ALFs argued that AHCA failed to present any witness at the administrative hearing who had first-hand knowledge that the facility in question was providing personal services “for a period of 24 hours to one or more adults who are not relatives of the owner or administrator.” These are material elements of the statutory definition of assisted living facility that AHCA was required to prove.

AHCA Offered Testimony from the ALFs’ Employees at Administrative Hearing.

At the administrative hearing, AHCA offered testimony from an employee who worked at the third facility from 8:00 A.M. to 8:00 P.M. She testified that the facility had five or six residents when she worked there for six weeks in Summer 2009. She said that she never saw a resident leave the facility at the end of the day or arrive in the morning.

In the recommended order, the administrative law judge (ALJ) found that there was no evidence presented by the ALFs that the residents were transported to another location at night. Click here to view the recommended order.

Court of Appeal Rules ALJ Improperly Shifted the Burden of Proof, Reverses Final Order.

The First District Court of Appeal ruled that the ALJ improperly shifted the burden of proof to the ALFs. The burden was misplaced when the ALJ suggested that the ALFs should have provided proof that the residents were transported out of the facility during the night. According to the court of appeal, it was AHCA’s burden to establish that the facility was an unlicensed ALF. Furthermore, the court ruled that the testimony offered by AHCA did not foreclose the possibility that these residents were at the facility for periods less than 24 hours. Therefore, the court ruled that AHCA did not meet its burden of proof. The final order was reversed.

Contact Health Law Attorneys Experienced in Representing Assisted Living Facilities.

The Health Law Firm and its attorneys represent assisted living facilities (ALFs) and ALF employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources Include:

Smallwood, Mary F. “Adjudicatory Proceedings.” Administrative Law Section Newsletter. (Apr. 2012).

LeadingAge Florida. “Florida Supreme Court Requested to Hear ALF Case.” LeadingAge Florida. (2012). From: http://www.fahsa.org/displaycommon.cfm?an=1&subarticlenbr=96

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

Assisted Living Facilities (ALFs) Allowed to Terminate a Resident For Almost Any Reason

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Currently, Florida law and regulations allow an assisted living facility (ALF) to relocate or terminate a resident for almost any reason. However, the administrator must provide a 45-day notice and document the reason for termination or relocation.

Section 429.28(k), Florida Statutes (2011), states that an ALF resident must receive:

At least 45 days’ notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days’ notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction.

A reason for termination or relocation can be as broad as “the patient isn’t happy here,” as long as a reason is given.

To view Chapter 429, Florida Statutes, which details Florida law relating to assisted living facilities, click here.

In Florida, assisted living facilities are licensed and regulated by the Agency for Health Care Administration (AHCA).

Although there have been consumer complaints and lobbying to change the law, at the present time the ALF is at liberty to do this. No hearing or other rights are required by law.

Contact Health Law Attorneys Experienced with Assisted Living Facility Cases.

The Health Law Firm and its attorneys represent assisted living facilities (ALFs) and ALF employees in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources Include:

Crochet, Jim. “ALF Residents Lack Protection.” Miami Herald. (April 2, 2012). From: http://www.miamiherald.com/2012/04/02/2723745/alf-residents-lack-protection.html

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.