STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ANSELMO MENDIVE, )
)
Petitioner, )
)
vs. ) Case No. 01-0469
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on
June 28, 2001, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Anselmo M. Mendive, M.D.
4601 Northwest 199th Street, Suite E Carol City, Florida 33055
For Respondent: Kim A. Kellum, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building 3, Suite 3431
Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUES
Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of these overpayments.
PRELIMINARY STATEMENT
By letter dated May 25, 1999, the Agency for Health Care Administration (AHCA) advised Petitioner that it had completed a review of a random sample of 577 Medicaid claims submitted by Petitioner for services rendered to 48 of Petitioner's patients during the period from July 11, 1994, through July 11, 1995, and that, based upon such review, and using a "generally accepted" "statistical formula for cluster sampling," it had determined that Petitioner had been overpaid $179,782.73. The letter further advised Petitioner that, "[i]f payment [was] not received within twenty-one (21) days of the date of receipt of this letter, [AHCA would] withhold Medicaid payments in accordance with the provisions of section 409.913, F. S., until the amount owed [was] fully recovered."
On June 8, 1999, Petitioner requested a hearing on the overpayment determination AHCA had made. The case was sent to the Division of Administrative Hearings (Division) on
November 29, 1999, for the assignment of a Division Administrative Law Judge to conduct the formal hearing Petitioner had requested. The case was docketed as DOAH Case No. 99-4957. At the request of the parties, on March 14, 2000,
the case was placed in abeyance to allow the parties the opportunity to pursue settlement negotiations. An Order Continuing Case in Abeyance, which directed the parties to file a status report on or before September 4, 2000, was issued on August 2, 2000. Not having received the status report required by the August 2, 2000, Order Continuing Case in Abeyance, the Administrative Law Judge assigned to the case issued an Order Closing File.
AHCA, with the agreement of Petitioner, returned the matter to the Division on January 23, 2001, for the re-assignment of a Division Administrative Law Judge to conduct the hearing that Petitioner had previously requested. The case was assigned a new case number (DOAH Case No. 01-0469) and Administrative Law Judge (the undersigned).
As noted above, the hearing was held on June 28, 2001. 1/ At the outset of the hearing, Petitioner, through his "spokesperson," R. Wayne Whelchel, M.D., 2/ indicated that he was not "going to be contesting the level of services that the Agency deemed to be appropriate." Three witnesses testified at the hearing. Theresa Mock, a Senior Unit Services Program Specialist with AHCA, and Robert Pierce, an AHCA administrator and statistician, testified on behalf of AHCA. Respondent testified on his own behalf. In addition to the testimony of these three witnesses, eight exhibits (Petitioner's Exhibit 1
and Respondent's Exhibits 1 through 7) were offered and received into evidence. Among these exhibits was the transcript of the deposition of Timothy Walker, M.D. (Petitioner's Exhibit 7), which was received into evidence in lieu of Dr. Walker's testimony at hearing.
At the close of the evidentiary portion of the hearing, the undersigned established a deadline (15 days from the date of the filing of the hearing transcript with the Division) for the filing of proposed recommended orders.
A Transcript of final hearing (consisting of one volume) was filed with the Division on July 17, 2001. On August 2, 2001, the parties filed a Joint Motion for Extension of Time to File Proposed Recommended Orders. On August 3, 2001, the undersigned issued an Order granting the Joint Motion and extending the deadline for the filing of proposed recommended orders to August 13, 2001.
Respondent and Petitioner both filed their Proposed Recommended Orders on August 13, 2001. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Petitioner
Petitioner is a family practice physician licensed to practice in Florida.
His office is located in Carol City, Florida.
The Provider Agreement
During the period from July 11, 1994, through July 11, 1995 (hereinafter also referred to as the "audit period"), Petitioner was authorized to provide physician services to eligible Medicaid patients.
Petitioner provided such services pursuant to a Non- Institutional Professional and Technical Medicaid Provider Agreement (Provider Agreement) he had entered into with the Department of Health and Rehabilitative Services, AHCA's predecessor. 3/ The Provider Agreement contained the following provisions, among others:
The provider agrees to keep for 5 years complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program and agrees to furnish the State Agency and Medicaid Fraud Control Unit upon request such information regarding payments claimed for providing these services. Access to the pertinent patient records and facilities by authorized Medicaid representatives will be held confidential as provided under 42 CFR
431.305 and 306.
The provider agrees that services or goods billed to the Medicaid program must be medically necessary, Medicaid compensable and of a quality comparable to those furnished by the provider's peers, and the services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting a claim. The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services
rendered will be based on the payment methodology in the applicable Florida Administrative Rule. The provider in executing this agreement acknowledges that he understands that payment of Florida Medicaid claims is made from Federal and State funds, and that any falsification or concealment of a material fact, may be prosecuted under Federal and State
laws. . . .
6. The Department agrees to notify the provider of any major changes in Federal or State rules and regulations relating to Medicaid. . . .
8. The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations.
Handbook Provisions
Among the "manuals of the Florida Medicaid Program" referenced in paragraph 8 of the provider agreement in effect during the audit period were the Medicaid Provider Reimbursement Handbook, HFCA-1500 (MPR Handbook) and the Medicaid Physician Provider Handbook (MPP Handbook). Copies of these "manuals" were provided to Petitioner. Accordingly, he should have been aware of their contents.
MPR Handbook: "Medically Necessary" Defined
The term "medically necessary" was defined in Appendix D of the MPR Handbook, in pertinent part, as follows:
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. . . .
MPP Handbook: Chapter 10
Chapter 10 of the MPP Handbook addressed the subject of "provider participation."
Section 10.9 of this chapter provided as follows Record Keeping
You must retain physician records on services provided to each Medicaid recipient. You must also keep financial
records. Keep the records for five (5) years from the date of service.
Examples of the types of Medicaid records that must be retained are:
Medicaid claim forms and any documents that are attached,
treatment plans,
prior authorization information,
any third party claim information,
x-rays,
fiscal records, and
copies of sterilization and hysterectomy consents.
Medical records must contain the extent of services provided. The following is a list of minimum requirements:
history,
physical examination,
chief complaint on each visit,
diagnostic tests and results,
diagnosis,
a dated, signed physician order for each service rendered,
treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services,
signature of physician on each visit,
date of service,
anesthesia records,
surgery records,
copies of hospital and/or emergency records that fully disclose services, and
referrals to other services.
If time is a part of the procedure code description being billed, then duration of visit shown by begin time and end time must be included in the record.
Authorized state and federal staff or their authorized representatives may audit your Medicaid records. You may convert your paper records to microfilm or microfiche.
However, your microfilm or microfiche must be legible when printed and viewed.
MPP Handbook: Chapter 11
Chapter 11 of the MPP Handbook addressed the subject of "covered services and limitations."
Section 11.1 contained an "introduction," which read as follows:
The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law. It also applies to all doctors of dental medicine or dental surgery if the services provided are services that if furnished by a physician, would be considered a physician's service. The services of this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of the services in this handbook must be done by or under the personal supervision of a
physician, osteopath or oral and maxillofacial surgeon at any place of service. Personal supervision is defined as the physician being in the building when the services are rendered and signing and dating the medical record either on the date of service or within 24 hours. Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment.
This "introduction" was followed by a discussion of "HCPCS Codes and ICD-9-CM Codes":
Procedure codes listed in Chapter 12 are HCPCS (Health Care Financing Administration Common Procedure Coding System) codes.
These are based on the Physicians' Current Procedural Terminology, Fourth Edition.
Determine which procedure describes the service rendered and enter that code on your claim form. HCPCS codes described as "unlisted" are used when there is no procedure among those listed that describes the service rendered.
Physicians' Current Procedural Terminology, Fourth Edition, Copyright 1993 by the American Medical Association (CPT-4) is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. The Health Care Financing Administration Common Procedure Coding System (HCPCS) includes CPT-4 descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures and other materials contained in CPT-4 which are copyrighted by the American Medical Association.
The Diagnosis Codes to be used are found in the International Classification of Diseases, 9th edition, Clinical Modifications (ICD-9-CM). A diagnosis code
is required on all physician claims in field 24E. Use the most specific code available. Fourth and fifth digits are required when available.
The American Medical Association, in cooperation with many other groups, replaced the old "visit" codes with new "Evaluation and Management" (E/M) service codes in the 1992 CPT. This is the result of the Physician Payment Reform which requires the standardization of policies and billing practices nationwide to ensure equitable payment for all services. The new E/M codes are a totally new concept for identifying services in comparison to the old visit codes. They are more detailed and specific to the amount of work involved
The process involved in selecting "the [c]orrect E/M [c]ode" was then described:
Terms Used to Select the Correct E/M Code
The levels of E/M codes are defined by seven components:
Extent of History
There are four types of history which are recognized:
-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; extended system review; pertinent past, family and/or social history.
-Comprehensive- chief complaint; extended history of present illness; complete system
review; complete past, family and social history.
Extent of Examination
There are four types of examinations which are recognized:
-Problem Focused- an examination that is limited to the affected body area or organ system.
-Expanded Problem Focused- an examination of the affected body area or organ system and other symptomatic or related organ systems.
-Detailed- an extended examination of the affected body area(s) and other symptomatic or related organ system(s).
-Comprehensive- a complete single system specialty examination or a complete multi- system examination.
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 following factors:
-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.
-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.
There are four types of medical decision- making which are recognized:
Straightforward, Low complexity,
Moderate complexity, and High complexity.
To qualify for a given type of decision- making, two of the three factors previously outlined must be met or exceeded as shown in the following table:
Type of decision making: Straightforward; Number of diagnosis or management options: minimal; Amount and/or complexity of data to be reviewed: minimal or none; Risk of complications and/or morbidity or mortality: minimal
Type of decision making: Low complexity; Number of diagnosis or management options: limited; Amount and/or complexity of data to be reviewed: limited; Risk of complications and/or morbidity or mortality: low
Type of decision making: Moderate complexity; Number of diagnosis or management options: multiple; Amount and/or complexity of data to be reviewed: moderate; Risk of complications and/or morbidity or mortality: moderate
Type of decision making: High complexity; Number of diagnosis or management options: extensive; Amount and/or complexity of data to be reviewed: extensive; Risk of complications and/or morbidity or mortality: high
Counseling is a discussion with a patient and/or family concerning one or more of the following areas:
-Diagnostic results, impressions and/or recommended diagnostic studies;
-Prognosis;
-Risks and benefits of management (treatment) options;
-Instructions for management (treatment) and/or follow-up;
-Importance of compliance with chosen management (treatment) options;
-Risk factor reduction; and
-Patient and family education. Coordination of Care
Coordination of care is coordination with other providers or agencies which is consistent with the nature of the problem(s) and the patient's and/or the family's needs.
Nature of Presenting Problem
A presenting problem is a disease, condition, illness, injury, symptom, sign, finding, complaint or other reason for encounter, with a diagnosis being established at the time of the encounter. There are five types of presenting problems:
-Minimal- A problem that may not require the presence of a physician, but the service must be provided under the physician's personal supervision.
-Self-limited or Minor- A problem that runs a definite and prescribed course, is transient in nature and not likely to permanently alter health status or has a good prognosis with management/compliance.
-Low Severity- A problem where the risk of morbidity without treatment is low; there is little to no risk of mortality without
treatment; full recovery without functional impairment is expected.
-Moderate Severity- A problem where the risk of morbidity without treatment is moderate; there is a moderate risk of mortality without treatment; uncertain prognosis or increased probability of prolonged functional impairment.
-High Severity- A problem where the risk of morbidity without treatment is high to extreme; there is moderate to high risk of mortality without treatment or high probability of severe, prolonged functional impairment.
Time
The inclusion of time in the old visit codes has been implicit in prior editions of CPT. Beginning in 1992, the inclusion of time as an explicit factor is done to assist physicians in selecting the most appropriate codes to report their services. However, the times indicated in each specific E/M code are average amounts of time a physician may spent with a patient. Thus, the actual content of the service should be used in determining the most appropriate code except in cases where the counseling and/or coordination of care dominates the patient encounter (more than 50%). The extent of counseling and/or coordination of care must be documented in the patient's records.
Time is not a factor for emergency department levels of service because emergency department services are typically provided on a variable intensity basis, often involving multiple encounters over a period of time; therefore, making it difficult to provide accurate estimates of time spent with a particular patient.
There are two types of time defined by CPT: "face-to-face" time for office and other
outpatient visits and "unit/floor" time for hospital and other inpatient visits. This distinction is necessary because most of the work of typical office visits takes place during the face-to-face time with the patient, while most of the work of typical hospital visits takes place during the time spent on the patient's floor or unit.
How to Select the Correct Evaluation and Management Code
The following steps should be used to select the appropriate E/M code:
Select the proper category (e.g., office, hospital, observation, consultation, etc.).
Select the proper subcategory, if applicable (e.g., initial, subsequent, established patient, etc.).
Select the code that best describes the level of E/M service within the category/subcategory as described below:
Step 1: If more than 50% of the physician face-to-face time with the patient is spent on counseling/coordination of care, select the level based solely on the amount of time spent.
Step 2. If time is not the controlling factor in selecting the level of E/M service, the following process should be used:
Determine the extent of HISTORY obtained during the E/M service (i.e, problem focused, expanded problem focused, detailed or comprehensive).
Determine the extent of the EXAMINATION performed during the E/M service (i.e., problem focused, expanded problem focused, detailed or comprehensive).
Determine the complexity of the MEDICAL DECISION-MAKING associated with the E/M service (i.e., straightforward, low complexity, moderate complexity or high complexity).
Step 3. Use the determinations made in Step
2 to select the level of E/M service performed.
ALL three of the key components described in Step 2 must be met or exceeded when selecting from the following levels of E/M service.
Code Description
992901-99205 Office, new patient . . . .
If only two of the three key components described in Step 2 were performed (e.g., no history was performed for an established patient), then you must select from the following levels of E/M service:
Code Description
99211-99215 Office, established patient
. . . .
The Physicians' Current Procedural Terminology
At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or "CPT") referred to in the MPP Handbook contained the following codes and code descriptions for "E/M" office services: 4/
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.
It is a rarity for a family practice physician to provide office services at the 99205 or 99215 "E/M" code level.
Office services at the 99203 and 99213 "E/M" code levels are the most common types of office services that family practice physicians provide.
The Audit and Aftermath
Commencing in 1995, AHCA conducted an audit of Medicaid claims submitted by Petitioner for services rendered from July 11, 1994, through July 11, 1995.
Petitioner had submitted 9,235 Medicaid claims for services rendered during the audit period to 826 patients, for which he had received payments totaling $294,554.57.
From the 826 Medicaid patients to whom Petitioner had provided services during the audit period, AHCA randomly selected a "cluster sample" of 48, and asked Petitioner to produce the medical records he had on file for these 48 patients.
According to the expert testimony of AHCA's statistician, Robert Pierce, which the undersigned has credited, a sample size of 30 or more is "uniformly and universally considered to be adequate for a sample of this type" (that is, a "cluster sample").
Petitioner had submitted a total of 577 claims for services rendered to the 48 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.
Based upon a preliminary review conducted by a Registered Nurse consultant (Stella Steinberg, R.N.) and physician consultant (John Sullenberger, M.D.), AHCA determined that Petitioner had been overpaid a total $183,283.94 for the Medicaid claims he had submitted for services rendered during the audit period.
After having been advised of this preliminary determination, Petitioner sent additional documentation to AHCA. The additional documentation was reviewed by Dr. Sullenberger. Following Dr. Sullengerger's review, the overpayment was recalculated and determined to be $179,782.73. By letter dated May 25, 1999, Petitioner was notified of this recalculation and advised of his right to request an administrative hearing on the matter.
Petitioner requested such a hearing. Thereafter, AHCA retained the services of Timothy Walker, M.D., a Board-certified family practice physician who is a faculty member of Tallahassee Memorial Hospital's Family Practice Residency Program. At AHCA's request, Dr. Walker reviewed the records that Petitioner had provided regarding the 48 patients in the "cluster sample" to determine whether there was documentation to support the
Medicaid claims relating to these patients that Petitioner had submitted for services rendered during the audit period.
Dr. Walker's review revealed "upcoding" on claims submitted for office services (that is, billing for a higher level of service than the patients' records revealed had actually been provided), 5/ billing for unnecessary medical services (in the form of aerosol treatments), and no documentation whatsoever relating to other claims. 6/
Based upon these findings of Dr. Walker, which the undersigned has accepted as accurate in the absence of any evidence to the contrary, AHCA determined, correctly, that Petitioner had been overpaid a total of $11,740.64, or
$20.34772903 per claim, for the 577 claims he had submitted for services rendered during the audit period to the 48 patients in the "cluster sample."
Using a generally accepted, appropriate, and valid statistical formula that "appears in many, many elementary statistical text books," AHCA extended these results to the total "population" of 9,235 Medicaid claims that Petitioner had submitted for services rendered during the audit period, and it correctly calculated that Petitioner had been overpaid a total of $175,992.84. 7/
Simple Mistake or Fraud?
There has been no allegation made, nor proof submitted, that any of the overbillings referenced above were the product of anything other than simple mistake or inadvertence on Petitioner's part.
CONCLUSIONS OF LAW
Effective July 1, 1993, by operation of Section 58 of Chapter 93-129, Laws of Florida, AHCA was transferred "[a]ll powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds of the Medicaid program within the Department of Health and Rehabilitative Services, as well as the infrastructure and support services that support the program, including, but not limited to, investigative, licensing, legal, and administrative activities."
Among the powers transferred to AHCA was the power to recover overpayments made to Medicaid providers, a power it still possesses.
An overpayment occurs when a Medicaid provider receives monies beyond those to which, pursuant to the provisions of its provider agreement, it is entitled.
In the instant case, AHCA is seeking to recover Medicaid overpayments allegedly made to Petitioner for services rendered during the audit period.
To determine the merits of AHCA's allegation that overpayments were made to Petitioner it is necessary to examine the statutory and rule provisions in effect during the audit period. See Toma v. Agency for Health Care Administration, 1996 WL 1059900 (Fla. DOAH 1996)("The statutes, rules, Medicaid Physician Provider Handbook and Medicaid EPSDT Provider Handbook in effect during the period for which the services were provided govern the outcome of the dispute.").
Section 409.913, Florida Statutes (Supp. 1994), provided, in pertinent part, as follows:
The agency shall operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible:
The agency shall conduct, or cause to be conducted by contract or otherwise, investigations, analyses, and audits of possible fraud, abuse, and neglect in the Medicaid program and shall report the findings therefrom in departmental audit reports as appropriate. . . .
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 which:
Have actually been furnished to the recipient by the provider prior to submitting the claim.
Are 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 department.
Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law.
A Medicaid provider shall retain medical, professional and financial 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. . . .
In making a determination of overpayment to a provider, the department shall use appropriate 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. . . .
When making a determination that an overpayment has occurred, the department shall prepare and issue an audit report to the provider showing the calculation of overpayments.
The audit report, supported by department work papers, showing an overpayment to a provider constitutes evidence of the overpayment. 8/ . . .
At all times material to the instant case, Rule 59G- 4.230, Florida Administrative Code, "applie[d] to all doctors of medicine . . . participating in the Medicaid program," and it required, among other things, that "[a]ll claims for
payment . . . utilize the Health Care Financing Administration Common Procedure Coding System, HCPCS, procedure codes and descriptors "
A provider who is the subject of an audit report that reveals overpayments is entitled to an administrative hearing pursuant to Chapter 120, Florida Statutes, before AHCA takes final agency action ordering repayment.
Petitioner requested, and was granted, such a hearing.
At the hearing, AHCA had the burden of establishing, by a preponderance of the evidence, that overpayments in the amount it is seeking to recoup from Petitioner ($175,992.84) had been made to Petitioner. See South Medical Services, Inc. v. Agency for Health Care Administration, 653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe Pharmacy v. Department of Health and
Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA 1992); and Full Health Care, Inc. v. Agency for Health Care
Administration, 2001 WL 729127 (Fla. DOAH 2001) (Recommended
Order).
ACHA met its burden of proof, as is reflected in the Findings of Fact set forth above.
It presented not only documentary evidence sufficient to make a prima facie showing (pursuant to Section 409.913, Florida Statutes) of entitlement to the monies sought, but also: credible expert testimony (from Dr. Walker) establishing that Petitioner was overpaid a total of $11,740.64, or $20.34772903 per claim, for services rendered to the 48 Medicaid patients in the "cluster sample" during the audit period; and credible expert testimony (from Mr. Pierce) establishing that it used generally accepted, appropriate, and valid sampling and statistical methods in selecting a "cluster sample" of 48 patients and determining, based upon Dr. Walker's findings regarding the "cluster sample" claims, that Petitioner was overpaid a total of $175,992.84 for services rendered to all 826 of Petitioner's Medicaid patients during the audit period.
Petitioner complains that Dr. Walker, in making his findings, relied on "evaluation and documentation guidelines" Petitioner had not been made aware of at any time prior to or during the audit period; however, the greater weight of the evidence demonstrates otherwise. These "evaluation and documentation guidelines" were spelled out, in detail, in the
MPP Handbook, a copy of which Petitioner had been timely provided, as well as in the CPT, which was referenced in the MPP Handbook.
Petitioner also questions the appropriateness and validity of the sampling and statistical methods used by AHCA to arrive at the total amount of overpayments; however, Petitioner did not present any expert testimony to refute Mr. Pierce's persuasive expert testimony that the sampling and statistical methods used were appropriate and valid. Petitioner did offer into evidence a May 7, 2001, article from the publication "Medical Economics," which told the story of an oncologist who had been the subject of a Medicaid audit and which contained statements reportedly made by a mathematics professor from the University of Pacific, Coburn Ward, retained by the oncologist, concerning the adequacy of the sample size (30) used in the audit. This article, however, constitutes hearsay evidence that would not be admissible over objection in a civil proceeding in Florida, and, as such, is insufficient, standing alone, to support a finding at odds with Dr. Pierce's testimony. See Dollar v. State, 685 So. 2d 901 (Fla. 5th DCA 1996)("A newspaper article, introduced to prove the truth of out of court statements contained therein, constitutes inadmissible hearsay."); Green v. Goldberg, 630 So. 2d 606 (Fla. 4th DCA 1993)("Section 90.706 does not allow statements in a learned
treatise to be used as substantive evidence since the treatise is hearsay if it is offered as substantive evidence."); Scott v. Department of Professional Regulation, 603 So. 2d 519 (Fla. 1st DCA 1992); "The only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action. [T]his
evidence was not sufficient in itself to support the Board's findings."); Doran v. Department of Health and Rehabilitative Services, 558 So. 2d 87 (Fla. 1st DCA 1990)("The documents
presented before the hearing officer were hearsay and did not come within any recognized exception which would have made them admissible in a civil action. . . . Because the only evidence presented by the department to show that Doran held assets in excess of the eligibility requirements for receiving ICP benefits consisted of uncorroborated hearsay evidence, we must reverse the hearing officer's final order."); and Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").
In view of the foregoing, AHCA should enter a final order finding that Petitioner was overpaid a total $175,992.84
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 $175,992.84 in Medicaid overpayments for services rendered to his Medicaid patients from July 11, 1994, through July 11, 1995, and requiring him to repay this amount to the agency.
DONE AND ENTERED this 23rd day of August, 2001, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 23rd day of August, 2001.
ENDNOTES
1/ The hearing was originally scheduled to commence on May 1, 2001, but was continued upon the joint request of the parties.
2/ The undersigned allowed Petitioner, whose native language is Spanish, to have Dr. Whelchel act as Petitioner's "spokesperson
to better enable [Petitioner] to communicate during the course of th[e] hearing." An interpreter retained by AHCA was also present at the hearing to assist Petitioner.
3/ Prior to July 1, 1993, the effective date of Chapter 93-129, Laws of Florida, the Department of Health and Rehabilitative Services was the state agency responsible for the administration of the Florida Medicaid program.
4/ The undersigned rejects as contrary to the greater weight of the evidence Petitioner's assertion that he and other providers were not advised by AHCA "to use the guidelines found in the CPT code book."
5/ In each and every claim, of the 577 under review, for office services, Petitioner had billed for the highest level of service (either at the 99205 or 99215 "E/M" code level). There was no documentation furnished by Petitioner to support any of these claims.
6/ These were for services purportedly rendered to Patients 43 and 48 in the "cluster sample."
7/ There is a 95 percent probability that Petitioner was overpaid $175,992.84 or more.
8/ It has been said that this language, which is now found in Subsection (21) of Section 409.913, Florida Statutes, enables AHCA to "make a prima facie case without doing any heavy lifting: it need only proffer a properly-supported audit report, which must be received in evidence." Full Health Care, Inc. v. Agency for Health Care Administration, 2001 WL 729127 (Fla. DOAH 2001) (Recommended Order).
COPIES FURNISHED:
Anselmo M. Mendive, M.D.
4601 Northwest 199th Street, Suite E Carol City, Florida 33055
Kim A. Kellum, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building 3, Suite 3431
Tallahassee, Florida 32308-5403
Rhonda M. Medows, Secretary
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Sam Power, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive
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 |
|---|---|---|
| Oct. 18, 2001 | Agency Final Order | |
| Aug. 23, 2001 | Recommended Order | Agency correctly determined, using generally accepted, appropriate and valid sampling and statistical methods, that Petitioner, a physician, received Medicaid overpayments totaling $175,992.84. |
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