OAH 16-1800-20298-2
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE COMMISSIONER OF
HUMAN SERVICES
|
In the Matter of the SIRS Appeal of TenderCare Home Services, Inc. |
RECOMMENDATION
FOR SUMMARY
DISPOSITION |
This matter is before Administrative Law Judge Manuel J.
Cervantes (ALJ) on the Department of Human Services’ (Department or DHS) Motion
for Summary Disposition. On March 5,
2009, DHS served a Notice of and Order for Hearing and Prehearing Conference
(Notice) on TenderCare Home Services, Inc. (Respondent or TenderCare) by
Corrie
A. Oberg, Assistant Attorney General,
Amadu
Edward Swaray, Esq.,
During
the course of the prehearing conference, the parties agreed that they wished to
proceed by summary disposition. The
parties agreed to a briefing schedule and the ALJ issued a Scheduling Order,
dated April 14, 2009. A Second Scheduling Order, accommodating the Summary
Disposition Motion and reserving a hearing schedule was issued on July 1, 2009.
DHS
filed its Motion with the Office of Administrative Hearings on July 6,
2009. Respondent filed its Memorandum in
Opposition to the Motion on July 20, 2009.
The record closed on July 28, 2009, upon receipt of DHS’s reply.
STATEMENT OF ISSUE
The issue in this case is whether DHS is entitled to
recover Medical Assistance (MA) payments totaling $113,909.92 made to
TenderCare for home care services rendered between August 1, 2007 and March 31,
2008.
Based upon all of the files, records and proceedings
herein, and for the reasons set forth in the accompanying Memorandum, the ALJ
makes the following:
RECOMMENDATION
1. That the DHS’s
Motion for Summary Disposition be GRANTED; and
2. That the
Commissioner of Human Services (“Commissioner”) AFFIRM DHS’s recovery of
$113,909.92.
Dated: August 26, 2009
_s/Manuel
J. Cervantes____
MANUEL J. CERVANTES
Administrative Law Judge
NOTICE
This report is a recommendation, not a final
decision. The Commissioner will make the
final decision after a review of the record and this report. The Commissioner may adopt, reject, or modify
this Report and Recommendations.
Under
Minn. Stat. § 14.61, the Commissioner may not make a final decision until after
the parties have had access to this report for at least 10 days. During that time, the Commissioner must give
any party adversely affected by this report an opportunity to file objections
to the report and to present argument supporting its position. Parties should contact Cal Ludeman,
Commissioner of Human Services,
The record of this proceeding closes upon the filing of
exceptions to the report and the presentation of argument to the Commissioner,
or upon the expiration for doing so. The
Commissioner must notify the parties of the date on which the record
closes. If the Commissioner fails to
issue a final decision within 90 days of the close of the record, this report
will constitute the final agency decision.
Under Minn. Stat. § 14.62, subd. 1, the Commissioner is
required to serve his final decision upon each party and the ALJ by first class
mail or as otherwise provided by law.
MEMORANDUM
I. Jurisdiction
The ALJ and DHS have jurisdiction pursuant to Minn. Stat. §§ 14.50 and 256B.04, subds. 15(c). The Respondent was given notice of the hearing in this matter and DHS has complied with all relevant procedural requirements.
ll. Contention
of the Parties
This is an appeal by Respondent from DHS’s Notice of
Agency Action, dated April 29, 2009[1], indicating that DHS intended to recoup an
overpayment of Minnesota Health Care Program (MHCP) funds.[2] DHS based its
proposed action on Respondent’s failure to comply with the documentation
requirements in support of billed services contained in Minn. R. 9505.2175,
subp. 1.[3] Respondent
contends that it did not know of these requirements, and in any event, it
substantially complied with the documentation rules.[4]
lII. Procedural
Standard
Minn.
R. Civ. P. 56 provides that summary judgment shall be granted if “there is no
genuine issue as to any material fact and that either party is entitled to a
judgment as a matter of law.”[5] Summary disposition is the administrative equivalent
of summary judgment in district court practice.
Summary disposition is appropriate where there is no genuine issue as to
any material fact and one party is entitled to judgment as a matter of law when
the law is applied to those undisputed facts.[6] The Office of
Administrative Hearings has generally followed summary judgment standards
developed in judicial courts when considering motions for summary disposition
in contested case matters.[7] A genuine
issue is considered one that is not frivolous or a sham, and a material fact is
one whose resolution will affect the result or outcome of the case.[8]
A
moving party has the initial responsibility of showing no material fact is in
dispute. To successfully resist a motion for summary judgment, the nonmoving
party must show that there are specific facts in dispute that have a bearing on
the outcome of the case.[9] When
considering a motion for summary judgment, the Court must view the facts in the
light most favorable to the non-moving party.[10] All doubts
and factual inferences must be resolved against the moving party.[11] Although all
doubts and factual differences must be resolved in favor of the non-moving
party, the party opposing the motion must establish by substantial evidence
that there exists a genuine issue of material fact.[12] The ALJ is to
make a recommendation about the appropriate interpretation of the law and about
how that law applies to the undisputed facts.
IV. Legal
Background
In
In
response to its federal obligation, DHS created the Surveillance and Integrity
Review Section (SIRS) and promulgated Minnesota R. 9505.2160 to 9505.2245
(2008) to address the inappropriate use of Medicaid payments. SIRS is charged with investigating providers
for compliance with federal and state statutes, rules, and regulations[17]. SIRS
conducts post-payment review of claims submitted for Minnesota MA payments.[18] SIRS may
select provider claims for review at random or based on a suspicion of fraud or
improper payment[19] and may examine the providers’ health service or
financial records with 24-hour notice.[20] Under
V.
Undisputed Facts
On October 27, 2006, DHS instituted the use of a new timesheet for PCA
providers. All
On October 16, 2007, Respondent executed a Provider agreement, signed by
Jenifer Malobe (Malobe) as C.E.O. The
Agreement states that Respondent would maintain records that fully disclose the
extent of services provided to individuals under MHCP, specifically, in
accordance with Minn. R. 9505.2160 through 9505.2245 as well as all federal and
state law relating to the delivery of services and submission of claims for
such services, and to assume full responsibility for the accuracy of claims
submitted to DHS.[26]
Respondent was selected for an audit after DHS received emails from
Malobe, the president, owner, and PCA, indicating that she had submitted claims
under her treating provider number for services she did not provide.[27] Malobe
communicated via email with a DHS representative that she was unable to submit
claims using the treating provider numbers of three of her employees who had
provided services, so she submitted the claims under her own treating provider
number. On April 1, 2008, DHS notified
Respondent that a record review would be conducted the next day at Respondent’s
place of business.[28]
On April 2, 2008, Susan Kurysh (Kurysh)
and Tom Dybvik (Dybvik), SIRS Investigators, appeared at Respondent’s place of
business to conduct their review.[29] The PCA
timesheets submitted for review by Respondent showed that the PCA services
billed under Malobe’s treating provider number for the dates in question were
actually provided by Respondent’s employees, Tubeah Vonziah, Fatuma Fahbulleh,
and Fortee Williams.[30] Malobe did
not provide documentation to support that the PCA services billed under her
provider number for the dates from August 1, 2007 to March 31, 2008 were
actually provided by her.[31] Respondent
did not use the Department-approved timesheet nor did Respondent submit its
timesheet for DHS approval.[32] The
timesheets used by Respondent did not contain much of the required information
mandated by Minn. R. 9595.2175.[33]
On April 2, 2008, Respondent produced the timesheets of eight of its PCA
employees in support of its claimed billing.
They are represented in Exhibits 2-4 and 9-13.
On April 2, 2008, Respondent produced the timesheets of a nursing
employee, George Safo, in support of its claimed billing.[34] Service
recipient Grace Mattson received both Registered Nursing (RN) and Licensed
Practical Nursing (LPN) services during the time period under review but no
timesheets, or other documents, for LPN services were submitted by Respondent
at the April 2, 2008 review in support of the LPN claimed billing. Based upon the review of nursing documentation
submitted by Respondent on April 2, 2008, DHS determined that Respondent failed
to support the level of service or the number of units billed for nursing
services.
DHS issued its Notice of Agency Action to Respondent on April 29, 2008,
seeking recovery of an overpayment in the amount of $51,350.24 for PCA services
and in the amount of $62,559.68 for nursing services, for a total overpayment
of $113,909.92.[35] Attached to
the Notice of Agency Action was a document which itemized the total overpayment
sought.[36] The grounds
for recovery of the overpayment was “[l]ack of documentation to support the
billed services”, fraud was not alleged.
On May 9, 2008, Malobe contacted Kurysh and requested an informal
meeting to discuss the investigation. Malobe informed Kurysh that she had
additional documentation to submit.[37] DHS staff met
with Malobe and her husband on May 15, 2008.
Malobe submitted additional documents, including computer print-outs
listing dates and hours worked by Respondent’s staff, including summaries from
LPNs Bangura and Orina and bearing the
signatures of the recipients.[38]
On May 21, 2008, DHS sent the Respondent a letter indicating that the
entire amount of the $113,909.92 overpayment remained due as originally stated
in the Notice of Agency Action of April 29, 2008[39] because, as before, DHS advised that the additional
documents did not satisfy the documentary requirements of
VI.
Analysis
The facts in this case are not in dispute; both
parties have relied on the same documents to make their respective arguments. The documents comprise the facts in this case
and as such, there is no genuine material question of fact. Where there is a question as to the facts,
the ALJ has viewed them in the light most favorable to the Respondent. The ALJ is charged with applying
Respondent has taken the legal position that it has
substantially complied with the documentation requirements contained in
Respondent’s legal posture presents a legal question,
to wit, whether substantial compliance is sufficient to satisfy the documentary
requirements of Minn. R. 9050.2175. For
the reasons stated below, the ALJ cannot conclude that Respondent substantially
complied with the rules. But even if the
ALJ did, Respondent did not cite any legal precedent that permits the use of “substantial
compliance” as the legal standard. The
ALJ finds as a matter of law that substantial compliance is not compliance with
The legal standard to be employed by the ALJ is found
in Minn. R. 9505.2160 through 9505.2245.
[a]s a
condition for payment by a program, a vendor must document each occurrence of a
health service provided to a recipient. The health service must be documented
in the recipient's health service record as specified in subpart 2 and, when
applicable, subparts 3 to 9. Program funds paid for a health service not
documented in a recipient's health service record shall be recovered by the department.
Subp. 2., requires a vendor to keep a health service record for all health
services, including nursing, that contain
(1)
the recipient’s name on each page of the recipient’s record;
(2)
the date on
which the entry is made;
(3)
the date or
dates on which the health service is provided;
(4)
the length of
time spent with the recipient if the amount paid for the service depends on
time spent;
(5)
the signature
and title of the person from whom the recipient received the service; and
(6)
when applicable,
the countersignature of the vendor or supervisor as required under parts 9505.0170 to 9505.0475.
Failing to develop and maintain
health service records as required above constitutes abuse.[41] The
Commissioner is required to seek monetary recovery of funds received through
abuse.[42]
A. Nursing
Hours Claimed and Billed.
The nursing documentation provided by Respondent on April 2, 2008 is
divided into three types of documents designated[43]: “Nurse’s
Notes”: from 11/2/2007 through 2/29/2008
consisting of nine pages[44]; “Progress Notes: from 9/15/07 through 2/3/08 consisting of two pages[45]; and “Monthly Charting”: from 9/2/07 through 12/2/07 consisting of six
pages for services provided to recipient Grace Matteson (Matteson).
None of these documents contain the length of time
spent with Matteson. While there appear
to be signatures and titles of the persons who provided the service, most signatures
and titles are illegible as are the notes themselves. Some of the entries note the time of day, but
none of the notes indicate the time nursing services began or ended. Five of the documents do not contain Matteson’s
name. Because of these inadequacies, it
is impossible to calculate the amount of time the nurse spent with the recipient.
The documents for nursing services do
not provide sufficient documentation to support the level of service provided
or the number of units billed. These
documents do not comply with the requirements of Minn. R. 9505.2175, subp. 2 cited above.
Respondent also submitted timesheets
for its RN employee, George Safo, to support its billing claim.[46] These
documents represent biweekly periods from August 8, 2007 through March 23, 2008
for services provided to Matteson.[47] There are 16 timesheets
representing 222 days worked.[48] Of the 222
days worked, there are only about 48 days of health status entries made by Safo
regarding Matteson’s health in the nursing records referenced above. This leaves open the question of what other health
services were provided to Matteson the remaining 174 days claimed and billed
for. These documents, in combination with the nursing documents referenced,
above do not provide sufficient documentation to support the level of service
provided or the number of units billed.
These documents do not comply with the requirements of Minn. R.9505.2175,
subps. 1 or 2 cited above.
Respondent submitted a second
batch of documents at the May 15, 2008 informal meeting.[49] These
documents represent monthly summaries of dates and times worked by various
employees of Respondent. They add a new
element in that they are signed by the Matteson. The thirteen pages of documents representing the
period from August 7, 2007 through March 31, 2008 for employee Safo’s service
to Matteson total 238 days. These
documents are not consistent with the 222 days claimed on his timesheets
referenced above. These documents do not
list the services provided to the Matteson; do not list the total number of service
hours provided to the Matteson; and the timesheets do not bear the provider’s
signature. These documents are not
compliant with the requisite elements of Minn. R. 9505.2175, subps. 1 or 2 cited above.
As stated above, Respondent
submitted no timesheets whatsoever for LPN employees at the April 2
review. The only LPN health notations in
the record are one Nurse’s Note entered on “2-22-08” and two Progress Notes dated
“2-1-08” and “2-3-08”.[50] At the May 15
meeting, Respondent produced three months of summaries for LPN Alice Bengura; from
November 2007 through January 2008.[51] These
summaries indicate that Bengura worked every day of each month for a total of 92
days.
Respondent also submitted summaries
for LPN Daniel Orina; from February through March 2008. These summaries indicate that Orina worked
every day of each month for a total of 60 days.
Of the 152 days worked by LPNs from November 2007 through March 2008,
there are only 3 days of health status entries made by LPNs regarding Matteson’s
health in the nursing records referenced above.
Again, this leaves open the question of what LPN health services were
provided to Matteson the remaining 149 days claimed and billed for. The LPN documents referenced above do not
provide sufficient documentation to support the level of service provided or
the number of units billed. These
documents do not comply with the requirements of Minn. R.9505.2175, Subps. 1 or 2 cited above.
Respondent’s failure to
maintain the records required by Minn. R. 9505.2175 constitutes abuse
under Minn. R. 9505.2165 and requires the Commissioner to seek monetary
recovery under Minn. R. 9505.2215. DHS
is entitled to recover the $62,559.68 paid to Respondent for nursing services.
B. PCA
Hours Claimed and Billed.
The following
documentation must be made for each day that care is provided by each PCA who
provides care to the recipient[52], in addition to the
requirements of Minn. R. 9505.2175, subpts. 1 and 2 referenced above:
(1)
the recipient's name; (2) the
name of the personal care assistant providing services; (3) the day, month, and year the
personal care services were provided; (4) the total number of hours spent providing personal care services to the
recipient; (5) the time of arrival at the site
where personal care services were provided and the time of departure from the
site where services were provided, including a.m. and p.m. designations; (6) the personal care services
provided; (7) notes by the personal care
assistant regarding changes in the recipient's condition, documentation of
calls to the supervising qualified professional, and other notes as required by
the supervising qualified professional; (8) the personal care assistant's signature on the time sheets which record
the hours worked by the personal care assistant, and must contain the following
statement: "I certify and swear that I have accurately reported on this
time sheet the hours I actually worked, the services I provided, and the dates
and times worked. I understand that misreporting my hours is fraud for which I
could face criminal prosecution and civil proceedings"; and (9) the recipient's signature,
stamp, or mark, or the responsible party's signature, if the recipient requires
a responsible party.
In reviewing the PCA documents
submitted by Respondent at the April 2 review[53], the documentation did not
contain all the required information. The
ALJ observes that none of the timesheets contain the recipients name or
signature, the personal care services provided, notes by the PCA regarding
changes in the recipient’s condition, or the language certifying accuracy of
hours. The records of three PCAs lacked
the total hours on site or worked; the records of two PCAs lacked the day,
month, and/or year service was provided; and two PCAs failed to sign all their
timesheets.[54]
The PCA summaries[55] submitted by Respondent at the
May 15 meeting do not comply with Minn.
R. 9505.2175, subpt. 7(H), cited above.
They do not contain the list of services provided to the recipient, do
not list the total number of hours services were provided to the recipient, and
do not bear the PCA’s signature.
Further comparison of the timesheets submitted on
April 2 with the summaries submitted on May 15 reveal additional
inconsistencies, i.e., for PCA Vonziah[56],
Respondent submitted 4 timesheets representing biweekly periods ending
Saturday, September 23, 2007[57]
to November 18, 2007[58]. There were no timesheets submitted for this
employee for the balance of November or December 2007, yet Respondent claimed additional
hours for this employee in the summary submissions.
The November 1-30, 2007 summaries[59]
are inconsistent with the timesheet, dated 11-30-07. The summaries[60]
reflect that employee worked 24 hours from 11/11/07 through 11/13/07, but the
timesheet submitted for this period reflect no hours earned. The timesheet signed by employee on 11/30/07
reflects 28 hours earned for the period from 11/11/07 through 11/30/07, but the
summaries[61]
reflect 91 hours earned for the same period by this employee. The December 1-30, 2007[62]
summaries[63]
for this employee reflect 143 hours worked during this month, but no concurrent
timesheets were provided to support these hours.
Finally, there is a serious
question whether Vonziah was eligible for reimbursement for any work prior to
January 2008 because her provider number did not become effective until January
1, 2008; allegations that were unanswered by Respondent.[64]
Notwithstanding DHS’s representative
advising Malobe on March 17, 2008 that PCA services provided before a
background check was completed were not eligible for payment, Respondent submitted
documentation requesting PCA payments for ineligible time periods.
Even after DHS afforded
Respondent a second opportunity to submit a complete record of documentation,
Respondent’s documentation system simply does not comply. Respondent’s failure to maintain the records
required by Minn. R. 9505.2175 constitutes abuse under Minn. R. 9505.2165 and
requires the Commissioner to seek monetary recovery under Minn. R.
9505.2215. DHS is entitled to recover
the $51,350.24 paid to Respondent for PCA services.
Finally, Malobe submitted
hours for payment for which she clearly did not provide the services and this
also meets the technical definition of abuse under the rules and serves as an
additional ground for DHS to seek monetary recovery for overpayments.
The ALJ recognizes that this is onerous result but Respondent
contributed to it by delaying its submission for payment for claimed services
for seven months. Had Respondent
submitted for payment sooner, it would have learned that its documentation
practices were noncompliant, it could have rectified its documentation system sooner,
and the overpayment may have been less.
Of course, the better practice would simply have been to inquire of DHS as
to what the documentation requirements for payments were, implement
documentation systems that were Minnesota rule compliant, and to have avoided
this inquiry altogether.
M. J. C.
[1] Notice of Agency Action; Ex. 16.
[2] MHCP is an umbrella term that includes
all Department administered health care programs; Susan Kurysh Aff., Senior
Investigator with the office of Surveillance and Integrity Review.
[3] Notice of Agency Action; Ex. 16.
[4]
[5]
[6] Sauter
v. Sauter, 70 N.W.2d 351, 353 (
[7] See
[8] Illinois
Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[9] Thiele
v. Stitch, 425 N.W.2d 580, 583 (
[10] Ostendorf
v. Kenyon, 347 N.W.2d 834 (
[11] See,
e.g., Thompson v.
[12] Osborne
v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (
[13] Title XIX of the Social Security
Act, 42 U.S.C. § 1396 (2007),
[14] 42 U.S.C. § 1396 (2006);
[15] 42 C.F.R. § 456.3(a) (2009).
[16] 42 C.F.R. § 456.23 (2009).
[17]
[18] MA is the predominant program of
the MHCP Department-administered health care programs; Kurysh Aff.
[19]
[20] Minn. R. 9505.2200, subp. 3(A); 9505.2185,
subp 2 (2008).
[21] 42 C.F.R. § 456.725 (2009); Minn.
Stat. § 256B.04, subd. 4 and 15(a) (2008); MA is the predominant program of the
MHCP Department-administered health care programs; Kurysh Aff.
[22] Minn. R. 9505.2200, subps. 4 and 5
(2008).
[23] Minn. R. 9505.2230, subp. 1 (2008).
[24] Minn. Stat. § 256B.04, subd. 15(c)
(2008); Minn. R. 9505.2245, subp. 1 (2008).
[25] Kurysh Aff.; Exs. 5 and 6.
[26]
[27] Kurysh Aff.
[28]
[29]
[30]
[31]
[32]
[33]
[34] Ex. 15.
[35]
[36]
Ex. 16; Attachment A.
[37] This raises a question about
credibility: Kurysh states in her
affidavit that at the conclusion of the review on April 2, 2008, she asked
Malobe if the documents presented at that meeting were the complete record for
each recipient. Kurysh states that Malobe
replied it was. On May 9, when Malobe requested the informal meeting with the
Department, Kurysh states that she asked Malobe whether she had additional
documentation to submit, Malobe replied that she did. When Kurysh asked whether the documentation
was available at the time of the review, Malobe said it was, but that the
investigators had not requested it. The
standard in a summary disposition is that the facts will be viewed in the light
most favorable to the non-moving party, Respondent herein, and therefore,
explains how the ALJ arrived at the facts as stated above.
[38] Kurysh Aff.; Ex. 17.
[39]
[40]
[41] Minn. R. 9505.2165, subp. 2 (7).
[42]
[43] Ex. 14.
[44] Respondent provided Nurse’s Notes
dated 11/3/07 (the 10/24/08 entry was scratched out and the 11/3/07 entry was
substituted for it) through 9/28/08. The
period of payments under review is from August 2007 through March 2008 and
therefore, the Nurse’s Notes dated after March 31, 2008 are beyond the scope of
this review and were not considered by the ALJ as support for payment for the
relevant period.
[45] The ALJ considered the Progress
Note dated 9/15/08 because the entry immediately below it is dated is
9/17/2007, the 8 was scratched out and overwritten with the “7”. No yearly date is noted for the 4 entries
immediately below this entry.
[46] Ex. 15.
[47] While the last timesheet represents
the period of 3/10 through 3/23/2008, Malobe and Safo signed and dated the
timesheet 3/7/08.
[48] The timesheets contain
discrepancies, i.e., the timesheet dated 1/30/2008 does not bear a “time in”
time for the entire week of 1/24 thru 1/30/2008. Similarly, there is no “time in” time on
9/10/07, yet both timesheets bear the signatures of Malobe and Safo.
[49] Ex. 17.
[50] Ex. 14; the signatures are not legible
but it is clear that these are LPN entries.
[51] Ex. 17.
[52] Minn. R. 9505.2175, subp. 7(H)
(2008).
[53] Exs. 2-4 and 9-13.
[54] Kurysh Aff.
[55] Ex. 17.
[56] Ex. 2.
[57] Timesheet
signed by employee on 9/28/07.
[58] Timesheet
signed by employee on 11/30/07.
[59] Ex. 17; signed by recipients Matteson
on 12/3/07 and Petersen on 12/5/07.
[60]
[61]
[62]
[63] Ex. 17; Petersen and Matteson
summaries.
[64] Ex. 17; emails between Respondent
and Tonya Jackson, Department Representative.