STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OUR LADY HEALTH CARE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3793

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

THIS CAUSE came before the undersigned on Respondent's Motion to Dismiss filed July 9, 1992, and on Petitioner's Motion to Strike filed July 9, 1992. The Motion to Strike requests that Respondent's Motion to Dismiss be stricken.

The record in this cause reveals that by letter dated June 4, 1992, Department advised Petitioner that, pursuant to Section 409.913(2), Florida Statutes, Department would be conducting a medical review of certain claims filed by Petitioner and that Petitioner should forward to the Department copies of all supporting documentation for those specified claims. In response to that correspondence, Petitioner filed with the Department on June 19, 1992, its Petition for a Formal Administrative Hearing. The Petition questions the Department's authority to review Petitioner's claims pursuant to that statutory provision, alleges that Petitioner will be prejudiced by delays in the payment of its claims resulting from the medical review process, questions the Department's good faith in determining that it will review specified claims pursuant to that statutory provision, alleges that this cause is related to other disputes between the parties currently pending before the Division of Administrative Hearings, and requests that the Department be enjoined from reviewing Petitioner's claims or withholding payment to Petitioner for any claims for a period of at least two years.

The Department's Motion to Dismiss alleges that the Department is authorized by statute to conduct prepayment review of claims filed by Medicaid providers, that the Department's right to conduct prepayment medical review is not a proper subject for an administrative hearing, and that prepayment medical review will ultimately result in the Department's determination that the claims being reviewed should be paid or should be denied. In essence, the Department's Motion alleges that there is no right to an administrative hearing regarding the Department's decision to review claims filed with it by a Medicaid provider and that the right to an administrative hearing would only become available to Petitioner once the Department has taken agency action by denying Petitioner's claims for payment.

Petitioner's Motion to Strike, which constitutes Petitioner's response to Respondent's Motion to Dismiss, in essence, alleges that the Department is acting both in bad faith and in ignorance of the law. The Motion to Strike does not directly respond to the allegations in the Department's Motion to Dismiss.

Section 409.913(2), Florida Statutes, provides as follows:

(2) The Department may conduct, or may con- tract for, prepayment review of provider claims to ensure cost-effective purchasing, billing, and provision of care to Medicaid recipients. Such prepayment reviews may be conducted as determined appropriate by the department, without any suspicion or allega- tion of fraud, abuse, or neglect.

It is clear that the Department has the authority to conduct prepayment review of provider claims ". . . as determined appropriate by the Department "

No statutory or case law has been cited by Petitioner or found by the undersigned for the proposition that a Medicaid provider may prevent the Department from conducting a prepayment review. Such a review is in the nature of an investigation, i.e., a free-form proceeding designed to result in agency action. If that eventual agency action is adverse to Petitioner, at that time Petitioner would be afforded the right to request an administrative hearing.

Petitioner's contention that this matter is related to other proceedings between Petitioner and the Department pending before the Division of Administrative Hearings is correct but irrelevant. Whatever the outcome of those proceedings, this proceeding simply involves the issue of whether the Department is authorized to withhold payment of claims filed by Petitioner pending prepayment medical review. The Department is clearly authorized to so by Section 409.913(2), Florida Statutes. Further, the relief sought by Petitioner in this proceeding--preventing the Department from reviewing Petitioner's claims pursuant to Section 409.913(2) and preventing the Department from withholding payment of those claims during its prepayment medical review-- cannot be granted. The Division of Administrative Hearings is not authorized to enjoin the Department from conducting prepayment review of claims filed by Medicaid providers.

RECOMMENDATION

It is, therefore recommended that a Final Order be entered denying Petitioner's Motion to Strike, granting Respondent's Motion to Dismiss, and dismissing the Petition for a Formal Administrative Hearing filed in this cause.

RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of July, 1992.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1992.

COPIES FURNISHED:

Imo J. Akpaeti

Our Lady Health Care Services #233

561 Northeast 79th Street Miami, Florida 33138

Gordon B. Scott, Esquire Department of Health and

Rehabilitative Services Building 6, Room 230

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 92-003793

Orders for Case No: 92-003793