STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2415

)

PROGRESSIVE HEALTH CENTER, )

INC., a Florida Corporation, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 18, 1982, in Miami, Florida. At the commencement of the hearing, the parties stipulated that the name of Respondent should be Progressive Health Center, Inc., rather than Esteban Valdes-Castillo, M. D., and the style of this cause is hereby amended to read as is reflected on this Recommended Order.

Petitioner Department of Health and Rehabilitative Services was represented by Robert A. Weiss, Esquire, Tallahassee, Florida, and Respondent Progressive Health Center, Inc. , was represented by J. Michael Sara, Esquire, Miami, Florida.

By letter dated August 13, 1981, Petitioner advised Respondent that Progressive Health Center, Inc., had erroneously billed and received payment under the Medicaid program for ser- vices rendered by a social worker rather than by a psychiatrist, as required by law, The Center disagreed with Petitioner's claim for overpayment and timely requested a formal hearing.

Accordingly, the issue for determination is whether Petitioner is entitled to reimbursement of $45,627.16 in Medicaid overpayments from Respondent.

Petitioner presented the testimony of Terry Davis, and Petitioner's Exhibits numbered 1 through 3 were admitted in evi- dence. Dr. Esteban Valdes- Castillo and Blanche Lear testified on behalf of the Respondent.

Both parties have submitted post-hearing findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

Petitioner's Motion to Strike Respondent's Proposed Recommended Order be and the same is hereby denied.

FINDINGS OF FACT

1. At all times material hereto, Dr. Esteban Valdes-Castillo, a Board- certified psychiatrist, was the Medical Director of Progressive Health Center, Inc. Blanche Lear, a psychiatric social worker, was an employee of the Center.

   
   

2. Between 1978 and August, 1981, Petitioner paid Respondent $45,627.16 in Medicaid payments for counseling ser- vices rendered by Blanche Lear.

   
   

3. A two-way mirror was located in the common wall between Lear's and Valdes-Castillo's offices.

   
   

4. Of the Medicaid recipients counseled by Lear, Valdes-Castillo did not meet, interview, counsel or even observe all of the patients for whom payments were made to the Center by Petitioner. Further, Valdes-Castillo only observed Lear's coun- seling sessions approximately once a month over the time period involved and then only upon the specific request of Lear to observe a specific patient for a specific reason.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

6. Petitioner is responsible for the administration of the Florida Medicaid program and for protecting the integrity of that program. Sections 409.266(1), (6)-(9), Florida Statutes (1981).

   
   

7. At all times material hereto, the Florida Medicaid Manual for Physician Services (January 1, 1978 edition) has pro- vided in Section VI C as follows: "Psychotherapy charges will not be allowed unless rendered by a Board certified, or Board eligible psychiatrist."

   
   

8. At all times material hereto, Section 10C-7.38(4)(a) 8, Florida Administrative Code, has provided as follows: "Payment for psychiatric services shall be made only to Board candidates or Board certified psychiatrists." Section 10C-7.38(4)(a), Florida Administrative Code, defines "physician services," in pertinent part, as follows: "Medical care rendered by a doctor of medicine or osteopathy and provided within the scope of the practice of medicine or osteopathy as defined by State law; The limitations found in Section VI C of the Florida Medicaid Manual and at Section 10C-7.38(4)(a)8 are compatible with one another. The interpretation applied by Petitioner allows payment for psychiatric services only when such services are performed by a qualified psychiatrist; there exists no exemption for services performed under the supervision of a qualified psychiatrist. The interpretation applied by Petitioner is consistent with the plain meaning of the regulation at issue and is persuasive. Respondent's suggestion that "charges" and "payments" are of separate meaning in the context of the above-quoted provisions has no merit. Under Respondent's argument, the medical services can be rendered by anyone so long as the billing is done by a Board-certified or Board eligible psychiatrist and payment is made to that Board certified or Board eligible psychiatrist. Petitioner's reading of the provisions together is consistent, obvious and reasonable.

9. Respondent's argument that petitioner is precluded from recovery because its demand letter referenced the Florida Medicaid Manual for Physician Services as authority for recoupment is also without merit. Since the language in Section 10C-7.38(4)(a)8, Florida Administrative Code, is consistent with the language in the Manual, Respondent has not been prejudiced by Petitioner's failure to cite the rule in its demand letter as the basis for Petitioner's right of recovery.

   
   

10. Respondent's argument that Section 10C-7.38(4)(a)8 is inconsistent with federal Medicaid regulations and is, there- fore, unenforceable, is likewise without merit. It is axiomatic that administrative rules, like statutes, are presumed to be valid, and Respondent has not pursued available administrative remedies to challenge the validity of the rule at issue. Rather, the limitation on reimbursement for psychiatric services found in that rule is consistent with federal regulations governing Medicaid reimbursement for physician services. States are authorized to limit reimbursement for physicians' services pursuant to their authority to determine matters within the scope of the practice of medicine as defined by State law. Florida law limits the practice of medicine to medical and osteopathic physicians. Chapters 458 and 459, Florida Statutes (1981). Physicians' trained assistants, registered nurses and licensed practical nurses may render related services under the direct supervision and control of licensed physicians. Section 458.303(2), Florida Statutes (1981). Nowhere in Florida law are social workers authorized to render medical services, even under the control and supervision of a licensed physician. Under a similar statutory scheme, the United States District Court for the Southern District of New York, in a very thoughtful and well-reasoned opinion, held that New York could limit its Medicaid reimbursement for psychiatric services so as to preclude reimbursement for services rendered by psychiatric social workers. Yapalater v. Bates, F.Supp. (S.D.N.Y. 1980), para. 30,604 CCH 1980 Medicare and Medicaid Guide, aff'd, 644 F.2d 131 (2d Cir. 1981), cert. den'd U.S. , 50 U.S.L.W. 3567 (Jan. 19, 1982). Respondent has failed to advance any argu- ment as to why Lear should be paid by the Medicaid program for rendering medical services as opposed to any other employee of the Center not licensed to practice medicine or osteopathy.

Further, even if Respondent were correct in its argument that a non-medical employee should be paid for rendering medical services so long as those services are performed under the supervision of a licensed physician, the facts in this case clearly indicate that Lear was not supervised by a licensed physician, but rather operated autonomously in her duties, and further that patients receiving the alleged psychiatric services under the Medicaid program had not even met a psychiatrist.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Petitioner directing

Respondent Progressive Health Center, Inc., to reimburse to Petitioner the amount of $45,627.16.

DONE and RECOMMENDED this 14th day of March, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1983.

COPIES FURNISHED:

Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard,

Suite 233

Tallahassee, Florida 32301

J. Michael Sara, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-002415

Orders for Case No: 81-002415