STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
WILLIAM O. KABRY, M.D.,
Respondent.
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) Case No. 06-0379MPI
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RECOMMENDED ORDER
Pursuant to notice, a final hearing in this case was held on April 27, 2006, in Tallahassee, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Debora E. Fridie, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
For Respondent: James Z. Zonas, Esquire
700 2nd Avenue North, No. 102
Naples, Florida 34102-5700 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 August 1, 2000, to
August 1, 2002 (the "audit period"), and, if so, what is the total amount of these overpayments.
PRELIMINARY STATEMENT
On June 13, 2003, AHCA issued a Provisional Agency Audit Report ("PAAR") claiming that Respondent, William O. Kabry, M.D., had been overpaid in the amount of $89,589.10 during the audit period. Dr. Kabry was afforded and took the opportunity to submit additional documentation in support of his position that no overpayments had been made. On October 25, 2004, AHCA issued a Final Agency Audit Report (the "FAAR") informing Dr. Kabry that, based upon a review of the documentation submitted, AHCA had determined that he had been overpaid in the amount of
$89,095.70 for services that in whole or in part were not covered by Medicaid.
Dr. Kabry timely filed a request for formal hearing pursuant to Section 120.569, Florida Statutes (2006). AHCA forwarded the case to the Division of Administrative Hearings ("DOAH") on January 30, 2006, and the matter was assigned to an Administrative Law Judge for conduct of a formal hearing.
At the hearing, AHCA presented the testimony of Margerite Johnson, a registered nursing consultant in the AHCA Medicaid Program Integrity ("MPI") office. By stipulation, AHCA submitted, in lieu of live testimony, the deposition Transcript of E. Rawson Griffin, M.D., AHCA's expert witness and physician
peer reviewer as AHCA Exhibit 24, and the deposition Transcript of Professor Fred Huffer, Ph.D., AHCA's expert as to statistics and statistical sampling, as late-filed AHCA Exhibit 25.
AHCA filed a Motion for Official Recognition of specific Florida Statutes and rules of the Florida Administrative Code; the Florida Medicaid Physician Coverage and Limitations
Handbook; the Medicaid Provider Reimbursement Handbook, HCFA- 1500 and Child Health Check-Up 221; and the Current Procedure Terminology (CPT), without objection from Dr. Kabry. The Motion for Official Recognition was granted at the outset of the final hearing.
AHCA's Exhibits 1 through 9, 11, and 13 through 26 were admitted into evidence. AHCA Exhibit 26 was the deposition testimony of Dr. Kabry and his wife, Alicia Kabry. On
August 21, 2006, AHCA filed its Third Amended Exhibit List with Rebuttal Exhibit, which included AHCA Rebuttal Exhibits 1 (portions of the Medicaid Provider Reimbursement Handbook not submitted at the final hearing) and 2 (selected pages from AHCA's website concerning the Medipass program). Dr. Kabry filed no objection to Rebuttal Exhibits 1 and 2, which are hereby admitted.
Dr. Kabry testified on his own behalf and presented the testimony of his wife, Alicia Kabry. Respondent's Exhibit 1 was admitted into evidence.
At the hearing, the parties stipulated that their proposed recommended orders would be filed on July 1, 2006. A Transcript of the final hearing was filed on May 17, 2006. Dr. Huffer's deposition was filed on May 22, 2006. On June 9, 2006, the parties filed a joint motion for enlargement of time, which was granted by order dated June 13, 2006, providing that the parties must file their proposed recommended orders no later than
August 4, 2006. AHCA's motion for waiver of the 40-page limit on proposed recommended orders was filed on July 3, 2006, and granted by Order dated July 13, 2006. On August 2, 2006, AHCA filed an unopposed second motion for enlargement of time for the filing of proposed recommended orders. The motion was granted ore tenus, and the parties were allowed until September 8, 2006, to file their proposed recommended orders. AHCA filed its Proposed Recommended Order on August 22, 2006. Respondent did not file a proposed recommended order.
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
Respondent, William O. Kabry, M.D., is a licensed physician in the State of Florida, having been issued license number 28394. During the audit period, Dr. Kabry's specialty
area of practice was general or family practice, and his office was in Naples, Florida. Dr. Kabry is now retired.
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. §§ 409.901, 409.902, and 409.9131, Fla.
Stat. (2006).
The Provider Agreement
During the audit period, Dr. Kabry was authorized to provide physician services to eligible Medicaid patients, pursuant to a valid, voluntary Medicaid provider contract agreement with AHCA, Medicaid Provider No. 065342000.
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 and Child Health Check-Up 221 ("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:
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.
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The fact that a provider has prescribed, recommended, or approved medical or allied care does not, in and of itself, make such care, goods, or services medically necessary or a medically necessary service.
The Reimbursement Handbook sets out record keeping requirements for Medicaid providers. Chapter 2 of the Reimbursement Handbook states in pertinent part that
Record Keeping Requirement: The provider must retain all medical, fiscal, professional and business records on all services provided to a Medicaid recipient. Records may be kept on paper, magnetic material, film, or other media. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamp signatures must be initialed.
Record Retention: The records must be retained for a period of at least five (5) years from the date of service.
Types of Records That Must be Retained: The following types of records, as appropriate for the type of service provided, must be retained (the list is not all inclusive):
Medicaid claim forms and any documents that are attached;
Professional records, such as appointment
books, patient treatment plans and physician referrals;
Medical, dental, optometric, hearing, and
other patient records;
Copies of sterilization and hysterectomy consents;
Prior and post authorization, and service
authorization information;
Prescription records;
Orders for laboratory tests and test results;
X-ray, MRI, and CAT scan records;
Business records, such as accounting ledgers, financial statements, invoices, inventory records and check registers;
Tax records, including purchase
documentation;
Partnership records;
Purchase documentation;
Provider enrollment documentation; and
Utilization review and continued stay approvals for psychiatric or substance abuse inpatient stays.
Right to Review Records: Authorized state and federal agencies and their authorized representatives may audit or examine a provider’s or facility’s records. This examination includes all records that the agency finds necessary to determine whether Medicaid payment amounts were or are due.
This requirement applies to the provider’s records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records.
The provider must send, at his or her expense, legible copies of all Medicaid-
related information to the authorized state and federal agencies and their authorized representatives.
Requirements for Medical Records: Medicaid records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the service rendered:
History;
Physical assessment;
Chief complaint on each visit;
Diagnostic tests and results;
Diagnosis;
Treatment plan, including prescriptions;
Medications, supplies, scheduling frequency for follow-up or other services;
Progress reports, treatment rendered;
The author of each (medical record) entry must be identified and must authenticate his or her entry by signature, written initials, or computer entry;
Dates of service; and
Referrals to other services.
Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service.
Incomplete Records: Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and/or recoupment of Medicaid payments.
Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped.
Chapter 5 of the Reimbursement Handbook, titled "Medicaid Abuse and Fraud," defines "overpayment" and "incomplete or missing records" as follows:
Overpayment. 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 claims, unacceptable practices, fraud, abuse, or mistake.
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Incomplete or Missing Records. Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records.
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. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care (See numbered paragraph 3,
page 7).[1]
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, Dr. Kabry submitted 3,109 Medicaid claims for services rendered to 760 patients, for which he received Medicaid payments of $195,708.93. Out of those
3,109 claims, 589 were billed at CPT code 99205 (the highest level for a new patient) and 2,332 were billed at CPT code 99215 (the highest level for an established patient). An additional
80 claims were billed at CPT code 99214, the second-highest level for an established patient. The audit was triggered by Dr. Kabry's unusually high percentage of claims billed at the highest levels of service in a family practice setting.2
In making a determination of overpayment, AHCA is not required to review each and every Medicaid claim submitted by a provider. Subsection 409.913(19), Florida Statutes (2002), 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 30 patients from the 760 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 30 patients.
AHCA chose the cluster sample of 30 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, Professor Fred Huffer, professor of statistics at Florida State University, validated the methodology used by AHCA. Professor Huffer reviewed AHCA's work and then conducted his own independent analysis that reproduced AHCA's results. Professor Huffer's testimony as to the reliability of AHCA's methodology is credited.
Dr. Kabry had submitted a total of 135 claims for services rendered to the 30 patients in the cluster sample during the audit period. Dr. Kabry had been paid $8,396.46 for these 135 claims.
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 retained the services of Dr. E. Rawson Griffin to review all the claims for the 30-patient cluster sample. Dr. Griffin is a physician who has been in active practice continuously for
25 years, is board-certified in family practice and geriatrics, and is licensed to practice medicine in Florida, Georgia, and Virginia. Dr. Griffin is qualified as an expert witness and physician peer reviewer consultant to review the claims in the audit for issues of medical necessity, appropriateness, quality of care, and coding issues as required by Section 409.9131, Florida Statutes (2002).
Based upon the initial review by Dr. Griffin, AHCA issued the PAAR with a determination that Dr. Kabry had been overpaid $89,589.10 during the audit period. Dr. Kabry communicated with AHCA and sent additional records. Based upon the additional documentation sent and a second review by
Dr. Griffin, the overpayment amount was reduced to $89,095.70.
The FAAR issued by AHCA on October 25, 2004, stated as follows, in pertinent part:
Based upon a review of all documentation submitted, we have determined that you were overpaid $89,095.70 for services that in whole or in part are not covered by Medicaid. Be advised that pursuant to Section 409.913(22)(a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs.
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The following is our assessment of why certain claims paid to your provider number do not meet Medicaid requirements.
* * * Review Determination(s)
Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office and hospital visits. The documentation you provided supports a lower level of office or hospital visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment.
The overpayment was calculated using a random sample of 30 recipients for whom you submitted 135 claims having dates of service from August 1, 2000 through August 1, 2002. The statistical calculation used the formula appropriate to this sample, which is the cluster sample calculation. Recipients are sampled and all the claims respecting a given recipient form a cluster.
In his deposition, Dr. Griffin discussed his review of the records Dr. Kabry had provided regarding the 30 patients in the cluster sample. Dr. Griffin found that Dr. Kabry had almost exclusively billed the highest levels of CPT coding for outpatient services, i.e., 99205 for new patients and 99215 for established patients. Out of 135 claims, Dr. Kabry billed all
23 new patient visits at CPT code 99205, of which Dr. Griffin found only eight fully justified. Dr. Kabry billed 101 out of
108 existing patient visits at CPT code 99215, and the remaining seven at CPT code 99214. Dr. Griffin found that Dr. Kabry failed to document a level of service consistent with these codes.
Dr. Griffin performed his own review of Dr. Kabry'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 Dr. Kabry's office. Dr. Griffin found that all
108 of the existing patient visits and 15 out of 23 new patient visits should have been billed at lower levels, based on the
documentation provided by Dr. Kabry.3 Dr. Griffin's testimony is credited as to his review of Dr. Kabry's records.
Margarete Johnson, AHCA's registered nursing consultant, performed the calculations by which Dr. Griffin'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. Dr. Kabry had been reimbursed
$8,396.46 for the claims related to the 30 patients in the cluster sample. Following Dr. Griffin's analysis, Ms. Johnson calculated that $4,080.09 of that amount constituted overpayments.
Using the generally accepted, appropriate, and valid statistical formula described by Dr. Huffer, AHCA extended this result to the total population of 3,109 Medicaid claims that Dr. Kabry had submitted for services rendered during the audit period, and correctly calculated that Petitioner had been overpaid a total of $89,095.70.
In his case-in-chief, Dr. Kabry offered two points.
First, he contended that the amount of time he spent with each patient justified the higher codings. Both Dr. Kabry and his wife, who worked as an LPN and billing clerk for Dr. Kabry, credibly testified that their Medicaid patients were largely uneducated, spoke little or no English, and required lengthy
counseling to make them understand the treatments for such endemic diseases as high blood pressure and diabetes. However, Dr. Kabry did not document in his medical records the amount of time spent with each patient, and thus may not employ time as a controlling factor in his Medicaid billings. See footnote 1, supra.
Second, Dr. Kabry contended that AHCA came into his office on several occasions, reviewed selected files, and gave his office a clean bill of health as to its Medicaid practices. As evidence, Dr. Kabry submitted a letter dated December 13, 2000, from Fran Nieves, a Medicaid field office manager from Fort Myers. The letter thanked Dr. Kabry for his assistance and cooperation "with the Medipass chart reviews that were conducted on 12/12 . . . These efforts provide the program with the ability to confirm that services were provided in accordance with the Medipass program, assuring that Medipass members have the access and quality health care that has been guaranteed to them."
In rebuttal, Margarete Johnson testified that
Ms. Nieves, the Fort Myers field office manager, is not employed by MPI and does not have the authority of MPI employees to check for possible fraud and abuse and Medicaid overpayments.
Ms. Johnson testified that Medipass has a separate mission from MPI. Among other duties, Medipass is responsible for training
and furnishing information to providers, and for enrolling recipients in Medipass as a cost containing measure.
Relevant provisions of the Reimbursement Handbook confirm that Medipass is a "primary, case-management program designed to assure Medicaid recipients access to medical care, decrease inappropriate service utilization, and control costs." Medipass is not charged with MPI's task of recovering provider overpayments and is certainly not authorized to approve a provider's CPT coding practices so as to immunize the provider from a subsequent audit by a peer reviewer, as suggested by
Dr. Kabry.
Dr. Kabry did not submit any written documentation or exhibits into evidence to rebut AHCA's final overpayment determination of $89,095.07. Dr. Kabry presented no expert testimony or evidence to rebut the expert testimony presented by Dr. Griffin and Dr. Huffer.
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 $89,095.07.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. §§ 120.569 and 120.57(1), Fla. Stat. (2006).
The burden of proof is on AHCA to establish by a preponderance of evidence that a Medicaid overpayment has been made. South Medical Services, Inc. v. Agency for Health Care Administration, 653 So. 2d 440 (Fla. 3d DCA 1995); Southpointe Pharmacy v. Department of Health and Rehabilitative Services, 596 So. 2d 106 (Fla. 1st DCA 1992).
The statutes, rules, and Medicaid provider handbooks, which were in effect during the period for which the services were provided, govern the outcome of the dispute.
Section 409.913, Florida Statutes (2002), provides, in relevant part:
For the purposes of this section, the term:
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"Medical necessity" or "medically necessary" means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. Determinations of medical necessity must be made by a licensed physician employed by or under contract with the agency and must be based upon information available at the time the goods or services are provided.
"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.
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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.
* * *
(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.
* * *
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.
AHCA's audit report and supporting materials established a prima facie case of overpayment, in accordance with Subsection 409.913(21), Florida Statutes (2002). Dr. Kabry offered no "written invoices, written inventory records, or other competent written documentary evidence" to rebut AHCA's prima facie case.
In view of the foregoing, AHCA should enter a final order finding that Petitioner was overpaid a total $89,095.07 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 Respondent received $89,095.07 in Medicaid overpayments for services rendered to his Medicaid patients from August 1, 2000, to August 1, 2002, and requiring him to repay this amount to the agency.
DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida.
S
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 5th day of March, 2007.
ENDNOTES
1/ Paragraph 3, page 7 provides:
When counseling and/or coordination of care dominates (more than 50%) the physician/patient and/or family encounter (face-to-face time in the office or other outpatient setting . . .), then time may be considered the key or controlling factor to qualify for a particular level of E/M services. This includes time spent with parties who have assumed responsibility for the care of the patient or decision making whether or not they are family members (e.g., foster parents, person acting in locum parentis, legal guardian). The extent of counseling and/or coordination of care must be documented in the medical record.
2/ AHCA's expert, Dr. E. Rawson Griffin, testified that such high percentages of high-level billings might be justified in an oncologist's practice, but almost never in that of a general practitioner.
3/ The remaining four Medicaid billings in the sample of
135 claims were for electrocardiograms, all of which Dr. Griffin found fully justified.
COPIES FURNISHED:
Debora E. Fridie, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431
Tallahassee, Florida 32308
James Z. Zonas, Esquire
700 2nd Avenue North, No. 102
Naples, Florida 34102-5700
Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116
2727 Mahan Drive
Tallahassee, Florida 32308
Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive, Mail Stop 3
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 |
|---|---|---|
| Apr. 03, 2007 | Agency Final Order | |
| Mar. 05, 2007 | Recommended Order | Respondent failed to overcome Petitioner`s prima facie showing that Respondent received Medicaid overpayments for office visits. |
AGENCY FOR HEALTH CARE ADMINISTRATION vs RICARDO L. LLORENTE, M.D., 06-000379MPI (2006)
MILTON M. APONTE, M. D. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 06-000379MPI (2006)
ARTHUR HENSON, D.O. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 06-000379MPI (2006)
ADOLFO S. GALVEZ vs AGENCY FOR HEALTH CARE ADMINISTRATION, 06-000379MPI (2006)
