STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ADOLFO S. GALVEZ, )
)
Petitioner, )
)
vs. ) Case No. 00-3556
) AGENCY FOR HEALTH CARE ) ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in Tampa, Florida, on May 3, 2001, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Donald W. Weidner, Esquire
Matthew D. Weidner, Esquire Weidner, Bowden & Weidner 11265 Alumni Way, Suite 201
Jacksonville, Florida 32246
For Respondent: Anthony L. Conticello, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUES
Whether Medicaid overpayments were made to Petitioner by the Agency for Health Care Administration ("AHCA") for services
performed during the audit period of December 4, 1996 to December 4, 1998, and, if so, what is the total amount of these
overpayments.
PRELIMINARY STATEMENT
On July 2, 1999, AHCA issued a Final Agency Audit Report (the "First Audit Report") claiming that Petitioner had been overpaid in the amount of $72,724.89 for physician office visit services between December 4, 1996 to December 4, 1998 (the "audit period"), and demanding that Petitioner reimburse AHCA for those overpayments. Petitioner timely filed a request for formal hearing pursuant to Section 120.569, Florida Statutes.
AHCA forwarded the case to the Division of Administrative Hearings ("DOAH") on August 9, 1999. The matter was given DOAH Case No. 99-3363 and assigned to an Administrative Law Judge for conduct of a formal hearing.
Section 409.9131, Florida Statutes, took effect on July 1, 1999, requiring AHCA to employ "peer reviews" on physician Medicaid overpayment audits. Under the new law, a "peer" is defined in part as a physician who has been in active practice within the past two years. The First Audit Report, issued one day after Section 409.9131, Florida Statutes, took effect, did not utilize "peer review" as defined in the statute. Therefore, AHCA withdrew the First Audit Report. On February 24, 2000, AHCA filed its corrected notice of rescission of the First Audit
Report at DOAH. On March 2, 2000, the file in DOAH Case No. 99- 3363 was closed.
AHCA then commenced a second audit, this time employing a physician who the agency considered a "peer" of Petitioner. On May 15, 2000, AHCA issued a second Final Agency Audit Report (the "Audit Report") claiming that Petitioner had been overpaid in the amount of $77,848.16 for physician office visit services during the audit period and demanding that Petitioner reimburse AHCA for those overpayments. Petitioner timely filed a request for formal hearing pursuant to Section 120.569, Florida Statutes, and this case ensued.
On April 23, 2001, AHCA filed a motion to allow expert testimony by deposition in lieu of live testimony, which was granted by order issued on April 24, 2001.
The hearing was held on May 3, 2001. At the hearing, AHCA presented the testimony of John L. "Jack" Williams, a human services program analyst for the Medicaid Program Integrity branch of the AHCA Inspector General's office, and Margerite Johnson, a registered nursing consultant in the Medicaid Program Integrity branch. AHCA also submitted the deposition testimony of its two experts, Dr. Timothy Walker, the physician who performed the peer review, and Dr. Mark Johnson, an expert on statistical analysis. AHCA's Exhibits 2 through 5, 7, 8, and 12 through 34 were admitted at the hearing. The undersigned
inadvertently neglected to admit AHCA's Exhibits 1 and 6, which were the professional resumes of Dr. Walker and Dr. Johnson, respectively. AHCA's Exhibits 1 and 6 are hereby ADMITTED. AHCA's Exhibits 35 through 37 were offered but not admitted into evidence.
Petitioner presented no testimony. Petitioner's Exhibits 1 through 3 were admitted into evidence.
The Transcript of the proceeding was filed on May 24, 2001.
Petitioner was given leave to file post-hearing motions and supporting memoranda to exclude AHCA's expert testimony and three AHCA exhibits provisionally admitted at the hearing.
Rather than file its motions, Petitioner filed a proposed recommended order on June 25, 2001. On June 29, 2001, AHCA filed a motion to close the record and deem Petitioner's post- hearing motions denied, due to his failure timely to file his written memoranda. At a telephonic hearing on AHCA's motion, the undersigned denied the motion, struck the prematurely filed proposed recommended order, and granted Petitioner additional time to file his post-hearing motions and memoranda. Petitioner filed the motions on July 13, 2001. AHCA filed its memorandum in opposition on August 27, 2001. Petitioner filed a reply on August 28, 2001. By order dated September 7, 2001, the undersigned denied Petitioner's motions to exclude the expert testimony and exhibits, and ordered the parties to file their
proposed recommended orders no later than October 8, 2001. Both parties timely filed proposed recommended orders.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Parties
Petitioner is a licensed physician in the State of Florida, having been issued license number 29615. His specialty area of practice is general or family practice. His office is located in Brandon, Florida.
AHCA is the agency responsible for administering the Florida Medicaid Program. One of AHCA's duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients. Section 409.9131, Florida Statutes.
The Provider Agreement
During the audit period, Petitioner was authorized to provide physician services to eligible Medicaid patients.
Petitioner provided such services pursuant to Medicaid Provider Agreements he entered into with AHCA and its predecessor, the Department of Health and Rehabilitative Services, on November 27, 1992, and December 3, 1996. The 1996 Provider Agreement, in effect at the time of the audit, contained the following provisions, among others:
Quality of Service. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim.
Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time.
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5. Provider Responsibilities. The Medicaid provider shall:
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(b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid [sic]. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program.
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(d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records.
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(f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program.
Handbook Provisions
Among the "manuals and handbooks" referenced in paragraph 3 of the Provider Agreement in effect during the audit period were the Medicaid Provider Reimbursement Handbook, HFCA- 1500 ("Reimbursement Handbook") and the Physician Coverage and Limitations Handbook ("C&L Handbook"), with their periodic updates.
The term "medically necessary" was defined in Appendix D of the Reimbursement Handbook as follows, in relevant part:
Medically Necessary or Medical Necessity
Means that the medical or allied care, goods, or services furnished or ordered must:
(a) Meet the following conditions:
Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
Be individualized specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs;
Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and
Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. . . .
Chapter 3 of the C&L Handbook sets forth procedure codes to be used by physicians in claiming reimbursement for services provided to Medicaid recipients. The origin of the procedural and diagnosis codes is as follows, in relevant part:
The procedure codes listed in this chapter are Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2, and 3. These are based on the Physician's Current Procedural Terminology (CPT) book.
The CPT includes HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . .
The CPT book is a systematic listing and coding of procedures and services provided by physicians. Each procedure or service is identified with a five digit code. For purposes of this proceeding, the relevant section of the CPT book is "Evaluation and Management-- Office or Other Outpatient Services," which sets forth the codes used to report evaluation and management services provided in the physician's office or in an outpatient or other ambulatory facility.
The CPT book sets forth instructions for selecting the proper level of Evaluation and Management ("E/M") service, as follows in relevant part:
Review the Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory
The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are:
history;
examination;
medical decision making;
counseling;
coordination of care;
nature of presenting problem; and
time.
The first three of these components (i.e., history, examination, and medical decision making) should be considered the key components in selecting the level of E/M services. . . .
Determine the Extent of History Obtained
The extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as follows:
Problem focused: chief complaint; brief history of present illness or problem.
Expanded problem focused: chief complaint; brief history of present illness; problem pertinent system review.
Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems.
Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history.
The comprehensive history obtained as part of the preventive medicine evaluation and management service is not problem-oriented and does not involve a chief complaint or present illness. It does, however, include a comprehensive system review and comprehensive or interval past, family and social history as well as a comprehensive assessment/history of pertinent risk factors.
Determine the Extent of Examination Performed
The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examination that are defined as follows:
Problem focused: a limited examination of the affected body area or organ system.
Expanded problem focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s).
Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s).
Comprehensive: a general multi-system examination or a complete examination of a single organ system. Note: The comprehensive examination performed as part of the preventive medicine evaluation and management service is multi-system, but its extent is based on age and risk factors identified.
For the purposes of these CPT definitions, the following body areas are recognized:
Head, including the face
Neck
Chest, including breasts and axilla
Abdomen
Genitalia, groin, buttocks
Back
Each extremity
For the purposes of these CPT definitions, the following organ systems are recognized:
Eyes
Ears, Nose, Mouth and Throat
Cardiovascular
Respiratory
Gastrointestinal
Genitourinary
Musculoskeletal
Skin
Neurologic
Psychiatric
Hematologic/Lymphatic/Immunologic
Determine the Complexity of Medical Decision Making
Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by:
the number of possible diagnoses and/or the number of management options that must be considered;
the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed; and
the risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the
diagnostic procedure(s) and/or the possible management options.
Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity.
To qualify for a given type of decision making, two of the three elements in Table 2 below must be met or exceeded.
Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of E/M services unless their presence significantly increases the complexity of the medical decision making.
The referenced Table 2, titled "Complexity of Medical Decision Making," sets forth guidelines for the four types of decision-making (straightforward, low complexity, moderate complexity, and high complexity) in terms of the relative number and/or complexity of three elements: number of diagnoses or management options (minimal, limited, multiple, or extensive); amount and/or complexity of data to be reviewed (minimal or none, limited, moderate, or extensive); and risk of complications and/or morbidity or mortality (minimal, low, moderate, or high).
The "Office or Other Outpatient Services" section of the CPT book provides the codes for those services in terms of the guidelines set forth above. Five codes of increasing complexity are provided for new patients, and five counterpart codes are provided for established patients:
New Patient
99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components:
a problem focused history;
a problem focused examination; and
straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family.
99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
an expanded problem focused history;
an expanded problem focused examination; and
straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family.
99203 Office or other outpatient visit for the evaluation and management of a new
patient which requires these three key components:
a detailed history;
a detailed examination; and
medical decision making of low complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family.
99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
a comprehensive history;
a comprehensive examination; and
medical decision making of moderate complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family.
99205 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
a comprehensive history;
a comprehensive examination; and
medical decision making of high complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family.
Established Patient
99211 Office or other outpatient visit for the evaluation and management of an established patient that may or may not require the presence of a physician.
Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services.
99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
a problem focused history;
a problem focused examination;
straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family.
99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
an expanded problem focused history;
an expanded problem focused examination;
medical decision making of low complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family.
99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
a detailed history;
a detailed examination;
medical decision making of moderate complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family.
99215 Office or other outpatient visit for the evaluation and management of an
established patient, which requires at least two of these three key components:
a comprehensive history;
a comprehensive examination;
medical decision making of high complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family.
Medicaid reimburses physicians according to the level of complexity of the office visit. The more complex the visit (and hence the higher the CPT code number), the greater the level of reimbursement.
The Audit
During the audit period, Petitioner submitted 2,215 Medicaid claims for services rendered to 382 patients, for which he received Medicaid payments of $134,469.21.
In making a determination of overpayment, AHCA is not required to review each and every Medicaid claim submitted by a provider. Section 409.913(19), Florida Statutes, permits the agency to employ "appropriate statistical methods," including "sampling and extension to the population," to make its determination.
In this instance, AHCA randomly selected a "cluster sample" of 39 patients from the 382 Medicaid patients to whom Petitioner had provided services during the audit period, and asked Petitioner to produce the medical records he had on file for these 39 patients.
AHCA chose the cluster sample of 39 patients according to a statistical formula indicating a 95 percent probability that any overpayment amount would be at least the amount identified. By selecting the 95 percent confidence factor, AHCA attempted to ensure that any potential error in the audit would be resolved in favor of the audited physician.
AHCA's statistical expert, Dr. Mark Johnson, validated the methodology used by AHCA. Dr. Johnson not only reviewed AHCA's work, but conducted his own independent analysis that reproduced AHCA's results. Dr. Johnson's testimony as to the reliability of AHCA's methodology is credited.
Copies of the medical records were provided to AHCA by Zheila Galvez, the office assistant in charge of Petitioner's billings, on or about March 1, 1999. Ms. Galvez certified that she provided AHCA the complete medical records for the 39 patients, and acknowledged that these records would provide the only information AHCA would use in its audit. Petitioner was later provided an opportunity to supplement the records, but provided nothing further to the agency.
At the hearing, counsel for Petitioner objected that AHCA failed to prove that the records it produced in evidence were the complete records as provided to AHCA by Ms. Galvez. The objection was rejected. No evidence was presented to show that AHCA mishandled the documents. Petitioner made no claim that a specific record was missing, and Petitioner was in the best position to know whether the records were complete.
Petitioner had submitted a total of 232 claims for services rendered to the 39 patients in the cluster sample during the audit period.
Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's request.
AHCA employee Dr. John Sullenberger, a physician who was not in active practice, performed the initial audit, reviewing all the claims for the 39 patient cluster sample.
Dr. Sullenberger's work resulted in the First Audit Report that concluded Petitioner had been overpaid $72,724.89. As noted in the Preliminary Statement above, AHCA withdrew Dr.
Sullenberger's audit because newly enacted Section 409.9131, Florida Statutes, mandated "peer review" in agency determinations of overpayment. Dr. Sullenberger did not meet the statutory definition of "peer" because he was not in active practice. See Section 409.9131(2)(c), Florida Statutes.
AHCA engaged Dr. Timothy Walker, an active, Board- certified family practice physician who is a faculty member of Tallahassee Memorial Hospital's Family Practice Residency Program, to perform a second audit. Through Dr. Walker's deposition testimony, AHCA established that Dr. Walker's background, work experience and education establish him as an expert in CPT coding, qualified to render an opinion on the propriety of Petitioner's coding and billing practices.
Dr. Walker reviewed the records that Petitioner had provided regarding the 39 patients in the cluster sample to determine whether there was documentation to support the Medicaid claims relating to these patients.
Dr. Walker's review found that Petitioner exclusively billed the highest levels of CPT coding for outpatient services, i.e., 99205 for new patients and 99215 for established patients. Dr. Walker found that Petitioner failed to document a level of service consistent with these codes.
Dr. Walker performed his own review of Petitioner's medical records and noted his conclusions as to the level of CPT coding that could be supported by the record of each patient for each visit to Petitioner's office. Dr. Walker found that all of the visits should have been billed at lower levels, based on the documentation provided by Petitioner. Dr. Walker's testimony is credited as to his review of Petitioner's records.
Margarete Johnson, AHCA's registered nursing consultant, performed the calculations by which Dr. Walker's conclusions as to the proper coding were translated into dollar figures. These calculations were a simple function of addition and subtraction, using the relevant Medicaid reimbursement amounts for the various codes. Petitioner had been reimbursed
$14,101.44 for the claims related to the 39 patients. Following Dr. Walker's analysis, Ms. Johnson calculated that $8,520.59 of that amount constituted overpayments.
Using the generally accepted, appropriate, and valid statistical formula described by Dr. Johnson, AHCA extended this result to the total population of 2,215 Medicaid claims that Petitioner had submitted for services rendered during the audit period, and correctly calculated that Petitioner had been overpaid a total of $77,848.16.
Petitioner did not present a case-in-chief.
Petitioner's only exhibits were three pages that duplicated documents presented by AHCA, except for the fact that they carried an additional, later agency date stamp not found on those presented by AHCA. Petitioner claimed that these documents proved that AHCA did not produce its entire file on Petitioner during discovery or at the hearing. AHCA's witness Jack Williams explained that the extra, later date stamp on these documents resulted from Petitioner's having re-submitted
these pages to AHCA as exhibits to his petition for formal hearing. This explanation was sufficient to allay any suspicion that AHCA's production was less than complete.
On the strength of the evidence and testimony presented by AHCA, and in the absence of any evidence or testimony to the contrary, it is found that Petitioner received Medicaid overpayments in the amount of $77,848.16.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.
AHCA has the burden of proving the Medicaid overpayments by a preponderance of the evidence. Southpointe Pharmacy v. Dept. of Health and Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA 1992).
Section 409.913, Florida Statutes, provides, in relevant part:
For the purposes of this section, the term:
* * *
(d) "Overpayment" includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.
* * *
The agency shall conduct, or cause to be conducted by contract or otherwise, reviews, investigations, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, or recipient neglect in the Medicaid program and shall report the findings of any overpayments in audit reports as appropriate.
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When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that:
Have actually been furnished to the recipient by the provider prior to submitting the claim.
Are Medicaid-covered goods or services that are medically necessary.
Are of a quality comparable to those furnished to the general public by the provider's peers.
Have not been billed in whole or in part to a recipient or a recipient's responsible party, except for such copayments, coinsurance, or deductibles as are authorized by the agency.
Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law.
Are documented by records made at the time the goods or services were provided,
demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical record.
A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. However, 24-hour notice must be provided if patient treatment would be disrupted. The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid-related records. The authority of the agency to obtain Medicaid- related records from a provider is neither curtailed nor limited during a period of litigation between the agency and the provider.
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(10) The agency may require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished.
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In making a determination of overpayment to a provider, the agency must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and
extension to the population, parametric and nonparametric statistics, tests of hypotheses, and other generally accepted statistical methods. Appropriate analytical methods may include, but are not limited to, reviews to determine variances between the quantities of products that a provider had on hand and available to be purveyed to Medicaid recipients during the review period and the quantities of the same products paid for by the Medicaid program for the same period, taking into appropriate consideration sales of the same products to non-Medicaid customers during the same period. In meeting its burden of proof in any administrative or court proceeding, the agency may introduce the results of such statistical methods as evidence of overpayment.
When making a determination that an overpayment has occurred, the agency shall prepare and issue an audit report to the provider showing the calculation of overpayments.
The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment. A provider may not present or elicit testimony, either on direct examination or cross-examination in any court or administrative proceeding, regarding the purchase or acquisition by any means of drugs, goods, or supplies; sales or divestment by any means of drugs, goods, or supplies; or inventory of drugs, goods, or supplies, unless such acquisition, sales, divestment, or inventory is documented by written invoices, written inventory records, or other competent written documentary evidence maintained in the normal course of the provider's business.
Petitioner's chief defense in this proceeding was that the medical records were uncorroborated hearsay, that an audit
report based on those records must also constitute uncorroborated hearsay, and thus there was no competent substantial evidence demonstrating overpayments to Petitioner. The question of the interplay between the hearsay rule and Section 409.913(21), Florida Statutes, was explored in Maz Pharmaceuticals, Inc. v. Agency for Health Care Administration, DOAH Case No. 97-3791 (Recommended Order, March 20, 1998). The Administrative Law Judge's analysis in Maz Pharmaceuticals applies in the instant case:
Petitioner argues that the Agency has primarily relied upon hearsay evidence and that the Agency, therefore, has failed to meet its burden of proof by presenting sufficient evidence upon which findings of fact can be made. Section 120.57(1)(c), Florida Statutes. Petitioner is correct in that the Agency's evidence is replete with hearsay and was based primarily on other hearsay. Indeed, the Agency did not attempt to qualify any of its exhibits as an exception to the hearsay rule.
However, Section 409.913(21), Florida Statutes, provides, in part, that: "The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." Petitioner argues that this provision means the documents relied on for all of the agency's testimony may be admitted in evidence but then must be ignored. Such a construction would render meaningless the language contained in Section 409.913(21) and would be contrary to the normal rules of statutory construction. Since the Legislature determined that the audit report and work papers constitute evidence which must be considered, the Agency presented a
prima facie case, which Petitioner chose not to rebut. The agency has, accordingly, proven the overpayment.
AHCA's audit report and supporting materials established a prima facie case of overpayment, in accordance with Section 409.913(21), Florida Statutes. Petitioner chose to offer no "written invoices, written inventory records, or other competent written documentary evidence" to rebut the agency's prima facie case.
In view of the foregoing, AHCA should enter a final order finding that Petitioner was overpaid a total $77,848.16 for Medicaid claims submitted for services rendered during the audit period.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that AHCA enter a final order finding that Petitioner received $77,848.16 in Medicaid overpayments for services rendered to his Medicaid patients from December 4, 1996 to December 4, 1998, and requiring him to repay this amount to the agency.
DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2001.
COPIES FURNISHED:
Donald W. Weidner, Esquire Matthew D. Weidner, Esquire Weidner, Bowden & Weidner 11265 Alumni Way, Suite 201
Jacksonville, Florida 32246
Anthony L. Conticello, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three Tallahassee, Florida 32308-5403
Diane Grubbs, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency For Health Care Administration Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 08, 2002 | Agency Final Order | |
| Oct. 24, 2001 | Recommended Order | Agency established, through audit and workpapers, a prima facie case of Medicaid overpayment. Petitioner failed to offer any evidence to the contrary. |
AGENCY FOR HEALTH CARE ADMINISTRATION vs AMADO VIERA, D/B/A VIERA MEDICAL CENTERS, 00-003556 (2000)
AGENCY FOR HEALTH CARE ADMINISTRATION vs LOVE AND CARE PHARMACY, 00-003556 (2000)
AGENCY FOR HEALTH CARE ADMINISTRATION vs JESUS NEGRETTE, M.D., 00-003556 (2000)
AGENCY FOR HEALTH CARE ADMINISTRATION vs LEELAND ER SVCS PARTNERSHIP, 00-003556 (2000)
