Rehabilitation Center at Hollywood Hills, LLC, DAB CR5469 (2019)

DECISION ON REMAND

I incorporate by reference my original decision in this case.1  I held there, and I reiterate, that Petitioner, Rehabilitation Center at Hollywood Hills, LLC, remains excluded from participation in Medicare, state Medicaid programs, and all other federally funded health care programs, until it is reinstated to participate in Florida’s Medicaid program by that state’s Agency for Health Care Administration (AHCA).  Petitioner is not currently reinstated and thus it remains excluded from participation.

In my original decision I held that the Inspector General (IG) properly excluded Petitioner pursuant to section 1128(b)(5) of the Social Security Act (Act).  Among other things, that section allows the IG to exclude any individual or entity whose participation in a state health care program is suspended or revoked for reasons bearing on that individual’s or entity’s professional competence, performance, or financial integrity.  The IG is authorized to exclude such an individual or entity for at least as long as the duration of the suspension of that individual’s or entity’s state license.

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The undisputed facts established that AHCA suspended Petitioner’s license to participate in Florida’s Medicaid program for a period of a year.  The IG excluded Petitioner until AHCA reinstated its license.  In my decision I held that, under Florida law, a period of suspension establishes the minimum length of time that a license is suspended.  At the end of that period a licensee is eligible to apply for reinstatement.  However, reinstatement is a matter of discretion:  it is not granted automatically and may be withheld.  I concluded that Petitioner had not applied for reinstatement of its license and that, consequently, its license remained suspended for purposes of establishing the duration of its federal exclusion period.  Consequently, exclusion remained ongoing and Petitioner would not be eligible to apply for relief from the IG’s exclusion determination until AHCA reinstated its Florida license.

Petitioner appealed my decision.  An appellate panel of the Departmental Appeals Board (Board) upheld my finding that section 1128(b)(5) authorized the IG to exclude Petitioner.  However, the Board professed confusion as to whether Petitioner’s license remained suspended under Florida law or whether the suspension had ended automatically.  The Board expressed concern that Florida law did not unambiguously state that AHCA had to reinstate Petitioner in order to end its suspension.  It remanded the case to me for further development so that I could decide whether the suspension ended after one year – thus limiting the IG’s exclusion determination to just one year – or whether the suspension remained in effect, thus allowing the IG to continue to exclude Petitioner until and unless Petitioner’s Florida Medicaid license was reinstated by AHCA.

In order to resolve the Board’s concern I afforded both parties the opportunity to obtain guidance from AHCA as to its application of Florida law, explaining to them that I would consider as dispositive an official interpretation by that agency as to how it applied the law.  The IG obtained a sworn statement from Kelly Ann Bennett, AHCA’s Bureau Chief for the Office of Medicaid Program Integrity, which I receive into the record.  IG Ex. 6.  AHCA authorized Ms. Bennett to explain applicable Florida law.  As Ms. Bennett explains, at the end of a suspension period, and as a prerequisite to reinstatement, Florida law requires a suspended entity such as Petitioner to file a written request to AHCA for reinstatement.  Id. at 2.  Reinstatement is not automatic: 

AHCA may not authorize a provider’s participation in the Medicaid program unless the provider is fully in compliance with all state and federal laws pertaining to the Medicaid program, as well as all federal, state, and local laws pertaining to licensure, if required.  See, generally, Florida Statutes Sections 409.907 and Chapter 400.

Id.  Upon receiving an application for reinstatement AHCA undertakes a multi-step review process in order to assure that the suspended provider meets all requisite requirements.  It will reinstate a suspended provider only if the provider proves that it satisfies those requirements.  Id.

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Ms. Bennett avers that Petitioner has not, as of the date of her declaration (October 29, 2019), sought reinstatement in Florida’s Medicaid program.  Therefore, Petitioner remains suspended under Florida law.  IG Ex. 6 at 2. 

The IG’s exclusion remains in effect.  The IG’s initial notice made it plain that Petitioner would not be eligible for reinstatement by the IG until it was reinstated by AHCA.  That has not occurred.

As I note above, I afforded Petitioner the opportunity – even as I afforded the IG that opportunity – to obtain a dispositive interpretation of Florida law to support its contention that the completion of its one-year license suspension automatically reinstated its State Medicaid participation.  It did not avail itself of that opportunity.  Instead, it continues to argue that the IG excluded it only until the end of the one-year suspension period.  In effect, it argues that its federal exclusion ended after one year even if it has not been reinstated by AHCA.

I reject that assertion.  The IG’s initial exclusion notice made it plain that the term of the federal exclusion would last until Petitioner was reinstated by AHCA.  That has not happened.