STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
ROBERTO BERMUDEZ, M.D., P.A.,
Respondent.
/
Case No. 17-2240MPI
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2017), before Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings ("DOAH"), on November 7 through 9, 2017, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Kevin D. Dewar, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Building 3
Tallahassee, Florida 32308
For Respondent: Alexandria Suarez, Esquire
Law Office of Alexandria Suarez, P.A. 27104 South Dixie Highway
Miami, Florida 33032 STATEMENT OF THE ISSUES
The issues in this case are: (1) whether Petitioner is entitled to repayment for alleged Medicaid overpayments to
Respondent; and, if so, the amount of the overpayment to be repaid; (2) the amount of any fine to be imposed against Respondent; and (3) the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
PRELIMINARY STATEMENT
On or about August 8, 2016, Petitioner issued the Final Audit Report ("FAR") that constitutes the challenged agency action in this proceeding. The FAR concluded that Petitioner overpaid $97,121.42 for services that, in whole or part, were not covered by the Medicaid program. Additionally, the FAR sought to impose a fine of $19,424.28 and a cost assessment of $1,708.08.
In sum, Petitioner asserted in the FAR that Respondent owed the total amount of $118,253.78.
Respondent timely requested an administrative hearing pursuant to sections 120.569 and 120.57(1), challenging the amounts assessed in the FAR, and the matter was referred to DOAH to conduct a final hearing. The final hearing initially was scheduled for July 6 and 7, 2017, but was continued to, and ultimately held on, November 7 through 9, 2017.
Petitioner presented the testimony of Robi Olmstead;
Dr. Lisa M. Jernigan, M.D.; and Dr. Fred W. Huffer. Petitioner's Exhibits 1 through 8, 9b, 9c, 10 through 16, 18 through 20, 22, and 23 were admitted into evidence without objection, and Petitioner's Exhibits 17 and 21 were admitted over objection.
Respondent presented the testimony of Joseph Castranova, III; Jeffrey Stone; and Dr. Roberto Bermudez, M.D. Respondent's Exhibits 12, 13, 27, and 28 were admitted into evidence without objection, and Respondent's Exhibits 20A, 25, and 26 were admitted into evidence over objection.
The seven-volume Transcript was filed with DOAH on
January 4, 2018, and pursuant to motion, the parties were given two extensions of time in which to file their proposed recommended orders. Both parties timely filed their proposed recommended orders on January 29, 2018, and the undersigned has given them due consideration in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner is the agency responsible for administering the Medicaid program in the state of Florida, including overseeing the integrity of that program. § 409.913, Fla. Stat.1/
Respondent is a board-certified family practice physician. During the Audit Period,2/ Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered medical services rendered to Medicaid recipients.3/ Respondent provides medical services in a rural area to an underserved population. A substantial proportion of his patients are poor and are Medicaid recipients.
The Audit
As part of Petitioner's duties in overseeing the integrity of the Medicaid program, it investigates and audits Medicaid providers for services rendered to Medicaid recipients.
In what is commonly referred to as the "pay-and-chase system," Medicaid providers bill Petitioner for medical services rendered to Medicaid recipients and Petitioner pays these bills, which are referred to as "claims."
Thereafter, Petitioner audits those claims. The audit is conducted to determine whether the medical services rendered were appropriate for the condition being treated, whether the amounts billed for services are correct based on documentation provided, and whether Medicaid covers the services provided. If Petitioner determines that the provider was paid for services that did not comply with the Medicaid program requirements, it seeks reimbursement from the provider of the payments made for noncompliant claims.
Here, Petitioner audited Respondent's medical records to verify that claims paid by Medicaid during the period from January 1, 2012, through June 30, 2014 (the "Audit Period"), qualified for payment under the Medicaid program.
During the Audit Period, Respondent submitted a total of 7,093 claims for billable services rendered to a total population
of 854 Medicaid recipients, for which Medicaid paid a total of
$448,314.06.
Rather than examine the medical service provision records of all 854 recipients Respondent served during the Audit Period, using a computer program, Petitioner randomly selected a sample comprised of 35 recipients from the total population of recipients.
Respondent submitted 245 claims for the 35 recipients in the sample population.
Once these 35 recipients were identified, Petitioner requested that Respondent provide the Medicaid services records for the claims submitted for these recipients.
Upon receiving the Medicaid services records from Respondent, Petitioner, through its nurse consultant, Karen Reynolds, and its peer reviewer, Dr. Lisa Jernigan,4/ reviewed the claims for these 35 recipients.
Reynolds' review of Respondent's records consisted of identifying the claims for which Respondent provided insufficient or no documentation, as required by the 2008 and 2012 Florida Medicaid Provider General Handbooks ("Handbooks"), to support the claims. When she determined that insufficient documentation had been submitted to support a claim, Reynolds made notations on a worksheet created for that particular recipient, regarding the
insufficiency of the documentation. Reynolds made her notations on the worksheets in light red ink.
After Reynolds completed her review, the records were transmitted to Dr. Jernigan for a substantive review of each claim to determine whether the documentation submitted in support of a claim complied with the pertinent standards in the Handbooks for payment of the claim.
Based on her substantive review, Dr. Jernigan determined, for each claim, whether the claim should be approved, adjusted, or denied.5/ Dr. Jernigan's notations regarding approval, denial, or modification of payment for each claim, as well as the basis of her determination for each claim, were made on the worksheets in green ink and in darker red ink.
After Dr. Jernigan completed her review of the claims, Reynolds went back through the worksheets and made additional notations, such as "NMN" for "not medically necessary," summarizing Dr. Jernigan's substantive review, in light green ink. For each claim that Dr. Jernigan determined should be adjusted or denied, Reynolds wrote the disallowed amount in the "dis-amt" space on the worksheet for that claim.6/
Based on the competent, substantial, and persuasive evidence, the undersigned determines that the audit was properly conducted. Dr. Jernigan engaged in the peer review of Respondent's records, and Reynolds merely served as an assistant
whose role was confined to the ministerial tasks of determining whether Respondent had submitted the documentation requested by Petitioner for purposes of determining compliance with the Handbooks, and, after Dr. Jernigan completed her substantive peer review of each claim, summarizing Jernigan's determinations, as appropriate, and calculating the disallowed amounts for claims that Dr. Jernigan had determined should be adjusted or denied.7/
On the basis of this review process, Petitioner determined that Respondent had been overpaid in the amount of
$4,867.97 ($19.86832653 per claim) for the 245 claims in the 35- recipient sample population.
Using the statistical formula for cluster sampling,8/ which extrapolates the overpayment determined from the sample population across the total population of 7,093 claims, Petitioner determined that Respondent had been overpaid the total amount of $104,951.05.
Petitioner informed Respondent of this preliminary overpayment determination through its Preliminary Audit Report ("PAR")9/ issued on November 10, 2015, and gave him the option of submitting further documentation in support of the claims that had been preliminarily identified as ineligible for payment by the Medicaid program.10/
In response to the PAR, Respondent provided additional documentation, which was reviewed by Dr. Jernigan.
Based on the review of the additional records Respondent provided, Petitioner issued a FAR, dated August 8, 2016.
The FAR determined that Respondent had been paid an overpayment of $4,637.45 ($18.92836735 per claim) for the
245 claims in the 35-recipient sample population.
As with the PAR, Petitioner employed the statistical formula for cluster sampling to determine the alleged probable overpayment for the total population of 7,903 claims paid during the Audit Period. This analysis yielded a probable overpayment of $97,121.42, with a 95-percent probability that the actual overpayment is equal to or greater than that amount.
Petitioner also sought to impose a fine of $19,424.28 as a sanction for violating Florida Administrative Code Rule 59G- 9.070(7)(e), and to require Respondent to pay $1,708.08 in investigative, legal, and expert witness costs, as authorized by section 409.913(23), Florida Statutes.
Subsequent to issuance of the FAR, Petitioner and Respondent conducted a peer-provider meeting. As a result of that meeting, as well as subsequent discussions between the parties, Respondent was afforded several opportunities to submit additional documentation to support his claims. As a result of the documentation Respondent provided, Petitioner has further
reduced the alleged overpayment amount to $72,084.43, which is now the amount at issue in this proceeding.
Petitioner also seeks to impose a fine consisting of
20 percent of this overpayment amount, or $14,416.89.
Additionally, if Petitioner prevails in this proceeding, it seeks to recover its investigative, legal, and expert witness costs.
Grounds Stated in FAR for Denial or Reduction of Claims
The FAR states four grounds, or "Findings," for Petitioner's determination that Respondent was overpaid by Medicaid for certain medical services he provided, based on cited provisions in the 2008 Florida Medicaid Provider General Handbook ("2008 Handbook"), 2012 Florida Medicaid Provider General Handbook ("2012 Handbook"), 2010 Physician Services Coverage and Limitations Handbook ("2010 Handbook"), 2012 Practitioner Services Coverage and Limitations Handbook, and 2014 Practitioner Services and Limitations Handbook ("2014 Handbook").11/ The FAR does not allege that Respondent committed any Medicaid fraud or abuse in this proceeding.
Finding No. 1
Finding No. 1 in the FAR alleges that Respondent provided incomplete records, as defined in the 2008 and 2012 Handbooks, for some claims for which he billed and was paid, such that any payments for which incomplete records were submitted
constitutes an overpayment that Petitioner is entitled to recover.
The 2008 and 2012 Handbooks, "Provider Responsibility" section, states, in pertinent part:
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 provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law; and
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.
The 2008 and 2012 Handbooks, "Requirements for Medical Records" section, states in pertinent part:
Medical records must state the necessity for and the extent of services provided. The
following requirements may vary according to the service rendered:
Description of what was done during the visit;
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 entry by signature, written initials or computer entry;
Dates of service; and Referrals to other services.
The 2008 and 2012 Handbooks, "Record Keeping Requirement" section, states:
Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010 (154) F.A.C., and medical records as defined in 59G-1.010 (160)
F.A.C. on all services provided to a Medicaid recipient. Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. 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 stamped signatures must be initialed.
The records must be accessible, legible and comprehensible.
The 2008 Handbook, "Incomplete Records" section, states that "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 recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped."
The 2012 Handbook, "Incomplete or Missing Records" section, similarly states: "Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid shall recover payment for services or goods when the provider has incomplete records or does not provide the records."
The following claims, which are in dispute in this proceeding, were denied on the ground stated in Finding No. 1: Recipient 2, claim nos. 2 and 21; Recipient 6, claim nos. 1, 2, 3, and 4; Recipient 8, claim no. 6; Recipient 9, claim no. 4; Recipient 10, claim no. 10; Recipient 13, claim no. 3;
Recipient 16, claim nos. 2, 3, 4, 6, 15, 16, 17, 18, 19, 21, 22,
23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 37, 38, 41, 43, 54,
and 57; Recipient 18, claim nos. 2, 3, 4, and 5; Recipient 24,
claim no. 1; Recipient 33, claim no. 9; Recipient 34, claim
nos. 4 and 7; Recipient 35, claim nos. 5 and 6.12/
A total of 47 claims are in dispute on the ground stated in Finding No. 1.
Finding No. 2
Finding No. 2 in the FAR alleges that the medical necessity of some services for which Respondent billed and was paid were not supported by the documentation he provided.
The 2008 and 2012 Handbooks, in the section titled "Provider Responsibility," state in pertinent part:
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:
* * *
Are Medicaid-covered goods or services that are medically necessary[.]
Additionally, as noted above, the 2008 and 2012 Handbooks, "Provider Responsibility" section, state, in pertinent
part:
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:
* * *
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.
The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 2: Recipient 2, claim nos. 11, 13, 19, and 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 36, 39, 41, 43, 45, and 47; Recipient 24, claim no. 1; Recipient 34, claim nos. 4 and 7; and Recipient 35, claim no. 4.
A total of 20 claims are disputed on the ground stated in Finding No. 2.13/
Finding No. 3
Finding No. 3 in the FAR states that some services that Respondent provided to established patients were billed and paid as having been rendered to new patients.
The 2010, 2012, and 2014 Handbooks, "Established Patient Visit" section, defines an "established patient" as "one who has received professional services from a physician or
another practitioner of the same specialty who belongs to the same provider group, within the past three years."
These Handbooks define a "new patient" as "one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years."
The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 3: Recipient 21, claim no. 1; Recipient 23, claim no. 1.
A total of two claims are disputed on the ground stated in Finding No. 3.
Finding No. 4
Finding No. 4 in the FAR states that the level of service for some claims for which Respondent billed and was paid was not supported by the documentation submitted to support the claim.
The 2010 Handbook, "Medically Necessary" section, states in pertinent part:
Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria:
* * *
Be individualized, specific, consistent with symptoms or confirmed diagnosis of the
illness or injury under treatment, and not in excess of the recipient’s needs;
* * *
Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.]
The 2012 and 2014 Handbooks, "Medical Necessity" section, state in pertinent part:
Medicaid reimburses services that are determined medically necessary and do not duplicate another provider’s service. Rule 59G-1.010 (166), F.A.C. defines "medically necessary" or "medical necessity" as follows: The medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions:
* * *
2. 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.
* * *
4. Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide.
The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 4: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; Recipient 16, claim
nos. 29, and 52; Recipient 17, claim no. 1; Recipient 21, claim
no. 2; Recipient 22, claim no. 2; Recipient 30, claim no. 3;
Recipient 32, claim no. 2; Recipient 35, claim no. 1.
A total of 12 claims are disputed on the ground stated in Finding No. 4.
In sum, a total of 69 claims are disputed on the grounds set forth in Finding Nos. 1 through 4.
Medical Record-Keeping Purpose and Requirements
Medical records should consist of a simple, complete, organized record that documents the patient's medical condition, needs, and the medical services rendered, so that the physician preparing the record, as well as any other physician——whether or not familiar with the patient or the record-keeping system, including an electronic health record ("EHR" system) used——is able to follow the patient's course of health and treatment.
Additionally, medical records must be sufficiently complete and clear for purposes of billing, and in the case of Medicaid, for payment. For claims for services provided to Medicaid recipients to be payable under the Medicaid program, the medical records must meet the requirements set forth in the pertinent Medicaid Handbooks.
As discussed above, among these requirements are that the records be true and accurate; demonstrate the medical necessity of, and level of service for, the services provided;
contain certain specified components, such as a description of what was done during the visit, the patient's medical history, physical assessment of the patient, the patient's chief complaint on a particular visit, diagnosis, and treatment plan; and be comprehensible, individualized, specific, and consistent with the symptoms or confirmed diagnosis of the illness or injury treated.
Dr. Jernigan opined, persuasively, that in the medical context, the term "comprehensible" means that the medical records are sufficiently intelligible and understandable such that another physician or other medically-trained individual could read the record and have a solid picture of the patient's medical history and general condition, as well as the treating physician's specific physical findings and reasons why a particular treatment or service was provided to the patient.
Dr. Jernigan testified, credibly and persuasively, that when a medical record contains conflicting or inconsistent information, it is incomprehensible. If the medical record is incomprehensible, it cannot be determined to support the billed service, in which case, the claim for that service must be adjusted or denied.
The Intergy EHR System
During the Audit Period, Respondent used the "Intergy" EHR system to prepare and keep his medical records for his
patients, including the Medicaid recipients he treated and whose claims he billed under the Medicaid program.
Dr. Jernigan does not use the Intergy EHR system in her own practice. However, the components of the Intergy EHR system are the same or similar to the components of other commonly-used EHR systems with which she is familiar.14/
Dr. Jernigan explained the purpose of each component of the Intergy EHR template used to compile the medical records for a patient.
The purpose of the first component of the Intergy template, "Reason for Visit," is to document the reason why the patient is seeking medical services.
The second component, "History of Present Illness," serves to provide a chronological description of the issues surrounding the patient's chief complaint and the reason for the visit. In essence, this portion of the medical record documents the commencement of the patient's medical complaint; the length of time the patient has experienced that condition; its progression; effective and ineffective treatments; the specific location of the condition on or in the patient's body, including whether it is on the left or right side of the body, or both; and other information regarding the temporal and physical aspects of the patient's medical condition.
The purpose of the "Past Medical/Surgical History" component is to document the patient's past medical or surgical history relative to the patient's current condition at the time of the particular visit.
The purpose of the "Social History" component is to document the patient's social history or habits as related to the patient's medical condition presented at the visit.15/
The "Family History" component is to enable the provider to document any family history that may be relevant to diagnosing and treating the patient's condition.16/
The purpose of the "Review of Systems" component is to document the patient's medical condition at the time of the visit. This component includes a review of body systems involved in the patient's complaint, to determine and document whether there may be other health issues that could present with the same symptoms. This component enables the provider to document relevant information regarding the involvement of other body systems that may affect the diagnosis or treatment for the primary complaint or reason for a particular visit.
The "Physical Findings" component is the portion of the medical record in which the provider documents the information regarding his or her findings resulting from a physical examination of the patient.
The "Assessment" component is where the provider documents his or her conclusion, or diagnosis, as to the nature, identity, or cause of the patient's condition.
The "Therapy" component enables the provider to describe and document the chosen course of treatment for the patient.
The "Counseling/Education" component enables the provider to describe and document the matters discussed with the patient, such as the nature of the patient's medical condition and prognosis, the provider's chosen course of treatment or therapy, recommendations regarding the patient's actions to assist in treating the condition, and instructions provided to the patient.
The "Plan" component describes the course of treatment for the medical condition and the reasons for choosing this course of treatment.
The "Practice Management" component is included to implement certain meaningful use regulatory requirements.
The Intergy EHR system has time-saving features, such as a "carry-forward" feature, which allows patient information from previous visits to be "carried forward," or copied and pasted, into the records for subsequent visits. Dr. Jernigan opined, credibly, that although the "carry-forward" feature is convenient, improper use or overuse of this feature can result in
the records for a patient's subsequent visits containing all of the information from previous visits, rather than only the information pertinent to the particular subsequent visit.
This may render the medical records outdated and inaccurate with respect to the patient's medical condition in subsequent visits.
Additionally, carrying forward information from previous visits can render the records for subsequent visits incomprehensible, in that the patient's reason for that particular visit, the symptoms exhibited at that visit, and the specific treatment provided in that visit cannot be determined from the mass of comprehensive information that was carried forward from previous visits and included in the record for that particular visit.
Here, the competent, credible evidence shows that Respondent was not trained in, and experienced difficulty in using, the Intergy EHR system.
The competent, credible evidence shows that Respondent frequently used Intergy's "carry-forward" feature in preparing his medical records, and this was the likely cause for many of the records for his Medicaid patients including extensive carried-forward information from visit to visit——to the point that in numerous cases, it was difficult to identify which, if any, additional medical conditions, physical findings,
treatments, or other services were provided to patients in their subsequent visits.
The competent, credible evidence also shows that the Intergy EHR system has numerous flaws that render it difficult to use and not optimally functional in producing electronic medical records that are sufficiently accurate or comprehensible to be used for Medicaid billing purposes.
As a result of the Intergy EHR system's flaws, as well as Respondent's apparent overuse of the system's "carry-forward" feature, his medical records were, in many cases, redundant, outdated, contradictory, and inaccurate with regard to documenting a patient's medical condition, physical findings, treatment, basis for services provided, and other key information for a particular visit.
This rendered those records untrue, inaccurate, and incomprehensible, and, therefore, not in compliance with the Handbooks' requirements regarding documentation of services sufficient to support billed claims.
Overpayment Determinations
Rather than presenting evidence on each of the 69 total claims denied or adjusted on the grounds stated in Finding Nos. 1 through 4, the parties presented testimony and related evidence on selected representative claims for each Finding.
The parties stipulated, with respect to Finding Nos. 1, 2, and 4, that Dr. Jernigan's analysis of Respondent's medical records, and her opinions regarding whether those records complied with the pertinent standards in the Medicaid Handbooks for payment purposes, applied to all claims for which the grounds in a particular Finding were cited as the basis for denial or modification of payment of that claim.
It is important to note that Petitioner did not stipulate to the correctness of Dr. Jernigan's analyses and opinions——only that her analyses and opinions applied to all of the disputed claims denied on the grounds set forth in
Finding Nos. 1, 2, and 4 in the FAR.
Due to the small number of claims (two) that were denied or adjusted on the grounds cited in Finding No. 3, the parties presented testimony on each of those claims.
Finding No. 1 – Insufficient Documentation to Support Claim
For Finding No. 1, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 6, claim nos. 1 through 4; Recipient 8, claim no. 6; Recipient 16, claim nos. 3, 6, 15, 18, and 21.
Recipient 6
Claim No. 1
Based on Dr. Jernigan's review, Petitioner denied Recipient 6, claim no. 1, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation to support the claim.
The Reason for Visit noted that the patient was visiting due to "increased pains," but the documentation did not describe the location or nature of the pain, so was incomplete.
The History of Present Illness component for this claim consisted of a bullet-point list of complaints, rather than a discussion of the development of those complaints over time. Additionally, this component contained incomplete and contradictory information. Specifically, this component contained a notation stating that the patient was suffering from hand pain and a range of other joint pain, without specifying which hand and joints (i.e., on the right side, left side, or both sides of the body) were painful. Additionally, the notation stated "no musculoskeletal symptoms," which conflicts with the notations regarding the existence of hand and other joint pain.
The Review of Systems component for this claim also contained conflicting or contradictory notations. For example, there were conflicting descriptions of the patient's state of
malaise, and conflicting notations documenting both the presence and the absence of night sweats.
The Physical Findings component for this claim also contained contradictions and insufficient information. For example, the notations state both "wheezing was heard" and "no wheezing was heard"; that vomiting was observed and that the patient is to call the provider if vomiting develops; and that muscle spasms and tenderness in the back, as well as numerous trigger points, were observed, but that there was an overall finding of "normal" for the musculoskeletal system. Further, the notes did not identify whether these findings applied to the left or right side of the body, or both.
The Assessment component consisted of a wide-ranging list of conditions, likely due to the carry-forward of all or much of the information from previous visits. Many of the conditions listed in this component were not supported by the information recorded in the History of Present Illness, Review of Systems, or Physical Findings components. For example, the assessment states that the patient suffers from hyperlipidemia, testicular dysfunction, viral syndrome, and upper respiratory infection, none of which are sufficiently supported by the information documented in any other component in the patient's medical history.
The Therapy component states that Respondent provided pain management counseling and pain management by medication; however, the medication prescribed for the patient was not identified or documented in the medical record.
The Counseling/Education component lists numerous matters on which counseling ostensibly was provided, including use of tobacco, alcohol, and illicit drugs, none of which were supported by any findings or notations in the patient's medical record.
The Plan component for this claim diagnoses the patient as suffering from impotence of organic origin and suggests referring the patient to a urologist. Dr. Jernigan credibly testified that this diagnosis is not supported by the information documented in the other components of the patient's medical record, thus highlighting the point that if this diagnosis is accurate, the medical records for this claim are incomplete because they do not sufficiently document the basis for this diagnosis and course of treatment.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 1 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete and incomprehensible.
Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 1 for Recipient 6 did not comply with the pertinent standards in the Handbooks.
Based on the foregoing, it is determined that claim no. 1 for Recipient 6 should be denied.
Claim No. 2
Claim no. 2 is a follow-up visit for the same patient that took place on August 3, 2012.
Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from most of the same deficiencies as did the documentation for claim no. 1.
Specifically, the Reason for Visit was incomplete because it failed to document and describe the location or nature of the "increased pains."
The History of Present Illness component consisted of the carried-forward information recorded in that EHR component for the previous visit, and, as such, suffered from the same deficiencies. Specifically, it did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead contained the same series of descriptive bullet points. Further, as previously discussed,
several of the conditions described in these bullet points were contradictory.
The Review of Systems component also appeared to carry-forward the same information contained in the same component from the previous visit, so suffers from the same
deficiencies. Additionally, this component is inaccurate because it did not accurately reflect the patient's current medical condition at the time of the follow-up visit.
The Physical Findings component also contained mostly carried-forward information from the same component in the record of this patient's previous visit, so contained the same inconsistencies and contradictions as the records submitted in support of claim no. 1.
The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so it also suffered from the same deficiencies as the Assessment for claim no. 1. As discussed in detail above, many conditions listed in this component were not supported by the information documented in the other components of the medical record.
In the Plan component for this claim, the urological diagnosis was deleted; however, the Plan did not specifically address or prescribe any treatments specific to the medical
conditions identified in other components of the medical record for this visit.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 2 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 2 for Recipient 6 did not comply with the pertinent standards in the Handbooks.
Based on the foregoing, it is determined that claim no. 2 for Recipient 6 should be denied.
Claim No. 3
Claim no. 3 is a follow-up visit for Recipient 6 that took place on August 15, 2012.
Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from several of the same deficiencies as did the documentation for claim nos. 1 and 2.
The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for
this visit did not contain any documentation regarding the medication prescription being refilled. Additionally, as before, this component did not document and describe the location or nature of the "increased pains" also listed as a reason for the visit.
As before, the History of Present Illness component consisted of carried-forward information, so continued to suffer from some of the previously discussed deficiencies. This component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points, some of which contained contradictory information.
The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety."
The Physical Findings component also contained carried-forward information from the same component in the record of this patient's previous visit, so some of the previous
contradictions in the notations, such as "wheezing was heard" and "no wheezing was heard," continued to be included. Additionally, the record still did not identify the specific location——i.e.,
left or right side of the body——of the musculoskeletal and neurological conditions noted, so was incomplete.
The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1 and 2. As discussed above, many conditions listed in this component were not supported by the information documented in the other components of the medical record.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 3 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 3 for Recipient 6 did not comply with the pertinent standards in the Handbooks.
Based on the foregoing, it is determined that claim no. 3 for Recipient 6 should be denied.
Claim No. 4
Claim no. 4 is a follow-up visit for Recipient 6 that took place on November 21, 2012.
Dr. Jernigan credibly testified, and a review of the medical record for that visit confirmed, that the documentation for this claim suffered from several of the same deficiencies as claim nos. 1, 2, and 3.
The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. This component also failed to describe the location or nature of the "increased pains" that are listed as a reason for the visit.
As before, the History of Present Illness component consisted of the carried-forward information, so continued to suffer from some of the previously discussed deficiencies. As before, this component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points. New information regarding the patient's self- monitoring of blood glucose was added, but the blood glucose levels observed at various times of the day were not listed, rendering this notation incomplete. Additionally, this component continued to be incomplete due to lack of information regarding precise location of musculoskeletal and neurologic conditions.
The Current Medication component, added into the medical records for this patient on this follow-up visit, was incomplete because it did not list the medications the patient is taking.
The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety."
The Past Medical/Surgical History component stated "Pediatric: Failure to thrive." Because this patient is a 73-year-old adult rather than a pediatric patient, this information is inaccurate.
As before, the Review of Symptoms component contained carried-forward information from this patient's previous visits, so perpetuated contradictions previously noted, such as "night sweats" and "no night sweats," and "no wheezing" and "wheezing worse during upper respiratory infection."
The Physical Findings component still did not identify the specific location—i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted. Additionally, necessary information, such as vital signs and lab testing results, was not documented.
The Assessment component again appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1, 2, and 3. As previously discussed, many conditions listed in this component, such as "adult failure to thrive," "vascular dementia," and "chronic fatigue syndrome," were not supported by the information documented in the other components of the medical records.
The Therapy Component noted that the patient's pain was being managed by medication, but there was no notation regarding the type of medication prescribed. Additionally, the patient was directed to perform a "self-examination" with no detail regarding what part of the body was to be examined, and the "addiction counseling" notation was unsupported by any other mention of addiction in the medical record.
The Counseling/Education component continued to contain extensive carried-forward information, and also contained an extensive list of newly-added counseling notations that were not supported by other components of the medical record.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 4 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the
treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 4 for Recipient 6 did not comply with the pertinent standards in the Handbooks.
Accordingly, it is determined that claim no. 4 for Recipient 6 should be denied.
Recipient 8 Claim No. 6
Based on Dr. Jernigan's review, Petitioner denied Recipient 8, claim no. 6, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation.
Dr. Jernigan noted that much of the medical record for this visit appeared to be an exact carry-forward from the previous visit, so did not specifically address or reflect the patient's current condition at the time of her follow-up visit. Additionally, several of the components for this visit contained contradictory or clearly inaccurate information. She noted that when inconsistencies are repeated in medical records, it is very difficult to determine the patient's condition or course of treatment for a particular visit.
Here, the History of Illness was again a bullet-point list of symptoms or conditions, rather than a chronological
narrative of the patient's medical condition presented for this visit. Additionally, although one of the stated reasons for this visit was "infected hands after burns," this component contained the contradictory statement "no skin symptoms."
Further, in the Past Medical/Surgical component, it is noted "Pediatric: Failure to thrive." Because the patient is an adult, this was an inaccurate notation in the record.
The Social History component stated in part: "Abuse and Neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst." Dr. Jernigan opined that this statement was inconsistent with the fact that the patient is obese.
The Functional component describes the patient as "unable to lift more than" and "unable to drive more than," but did not contain a complete description of these limitations from which the patient suffered. Additionally, the statements "able to walk" and "difficulty walking unassisted" appeared to be contradictory.
The Review of Systems also contained several contradictory statements. Specifically, the Reason for Visit component stated that one of the reasons for this visit was "infected hands after burns," but the Review of Symptoms component stated that the patient exhibited "no skin lesions." Additionally, this component stated that the patient exhibited
"no polydipsia" and "polydipsia," "vertigo" and "no vertigo," and "no sensory disturbance" and "tingling of the hands and feet, a burning sensation, and numbness of the hands and feet (distal)."
The Physical Findings also contained contradictory and incomplete information. For example, the stance and gait were shown as being both "abnormal" and "normal." Further, the description of the burns on the patient's hands did not specify whether they were first-, second-, or third-degree burns, and although her hands were burned, the skin was described as "general appearance was normal" and having "no skin lesions."
The Assessment consisted of an extensive list of conditions, many of which were unsupported by the Review of Systems and Physical Findings components.
The Therapy component consisted of an extensive list of items, many of which were unsupported by information in the other components of the medical record. For example, addiction counseling for alcohol and opioids is noted, but there was no information documenting addiction to these substances in other parts of the medical record. Additionally, "psychoactive medication management" was listed as a therapeutic item, but the specific medication was not identified and the other components did not support this therapy. Similarly, "pain management by medication" was listed, but the specific medication was not
identified. "Education and instructions" also was listed but there was no description of the specific subjects.
The Counseling/Education component consisted of an extensive list of subjects about which the patient ostensibly was counseled or education on this visit, but most of them were unsupported by the information in the other components of the medical record for this visit. Dr. Jernigan noted that it appeared that the EHR system "dumped" a laundry list of unrelated items into the notes for this component, making it difficult to know precisely what type of counseling and education was actually provided for this visit.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 8 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks.
Accordingly, it is determined that claim no. 6 for Recipient 8 should be denied.
Recipient 16
Recipient 16 was a young male patient. During the Audit Period, this patient had numerous visits to Respondent, resulting in a total of 59 claims. Of those, 33 are in dispute in this proceeding. Dr. Jernigan testified about claim nos. 3, 6, 15, 18, and 21 as representative of her analysis and opinions regarding claims denied or adjusted pursuant to the grounds stated in Finding No. 1.
Claim No. 3
Dr. Jernigan again noted incomplete documentation and inconsistencies with respect to the notations in the various components of the medical record for this claim.
Specifically, she noted that in the Social History, there is a notation of "Abuse and neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst," but this notation was not consistent with or supported by the information in the other components of the medical record for this visit.
In the Review of Symptoms component, there was an inconsistent notation of "earache" and "no earache."
In the Physical Findings component, no vital signs were recorded, rendering the medical record incomplete. Additionally, there were several inconsistent observations
documented, including a notation of "no distress," notwithstanding that "vomiting was observed."
The Assessment component contained extensive carried- forward information from previous visits, rendering that information inaccurate with respect to this particular visit. Additionally, the medications of Phenergan and Bentyl IM apparently were administered, but no dosage was documented.
The Counseling/Education component listed subjects about which the patient ostensibly was counseled, such as tobacco, alcohol, and illicit drug use, but these items were not supported by information in the Social History component or in other components in the medical record for this visit.
Ultimately, Dr. Jernigan determined that this claim, which was for an injection to treat nausea with vomiting, should be denied because no dosage for the injected medication was provided, as required by the Handbooks for the claim to be payable.
Accordingly, it is determined that claim no. 3 for Recipient 16 should be denied.
Claim No. 6
Although the Reason for Visit component referred to test results, the types of tests and results thereof were not addressed or otherwise documented in the medical record for this visit.
The History of Present Illness again was presented in a bullet-point list, rather than a chronological narrative of the patient's medical condition and its progression and treatment. There was no information regarding when or for how long the list of conditions existed, or whether they existed at the time of this specific visit.
The notation in the Physical Findings that there was "no nasal discharge seen" and "no sinus tenderness" was inconsistent with the Review of Symptoms notations documenting the presence of sinus pain and nasal discharge, and the notation that the oropharynx was "abnormal" and "inflamed" was inconsistent with the notation that it also was "normal."
The Counseling/Education component notations stated that the patient again was counseled about tobacco, alcohol, and illicit drug use, but as before, there was no information in the other components to support this counseling for this visit.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support
claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks.
Accordingly, claim no. 6 for Recipient 16 should be denied.
Claim No. 15
The Reason for Visit component for this claim did not address the reason for the patient's visit or identify the test results that would be reviewed during that visit.
As with previous claims, the History of Illness component for this visit was a bullet-point list of symptoms rather than a chronological narrative of the patient's condition. Additionally, it contained contradictory information regarding the presence or absence of pulmonary symptoms.
The Review of Systems component for this visit contained multiple contradictions similar to those noted in the previous claims for this patient. Specifically, there were contradictory notations regarding the presence of "neck pain" and "no neck pain," the presence of "neck stiffness" and "no neck stiffness," the presence of "sore throat" and "no sore throat," and the presence of "localized joint stiffness" and "no localized joint stiffness."
The Physical Findings component lacked information regarding the patient's vital signs, and contained contradictory
notations regarding normal and abnormal breath sounds and the presence and absence of wheezing.
The Assessment component contained extensive information that was unsupported by information documented in the other components of the medical record for this visit. Moreover, this patient had been documented in a previous visit as weighing
168 pounds and suffering abuse and neglect resulting in hunger or thirst, so the notation that he was at risk for obesity hypoventilation syndrome appeared inaccurate and inconsistent with his previously documented condition.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 15 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 15 for Recipient 16 did not comply with the pertinent standards in the Handbooks.
Accordingly, claim no. 15 for Recipient 16 should be denied.
Claim No. 18
As with the medical records for previous claims, the Reason for Visit component for this claim lacked key information, such as information regarding the reason for the visit and the test results to be reviewed.
The History of Illness component once again consisted of a bullet list of observed conditions, rather than a chronological narrative of the history of the patient's condition, its progression, and its response or lack of response to treatments.
The Review of Systems contained many of the previously noted inconsistencies regarding the presence and absence of neck pain and stiffness and presence and absence of sore throat. Additionally, this component contained the contradictory notations of "heartburn" and "no heartburn."
The Physical Findings component of this visit also contained many of the same contradictions as noted for previous claims for this patient. Specifically, there was a notation of normal and abnormal pharynx, normal and abnormal lungs, the presence of wheezing and absence of wheezing, and the presence of both an abnormal and normal gait.
The Assessment component again consisted of an extensive list of conditions, many of which were not supported by
information documented in the other components for this medical record.
The Plan component was non-specific and did not address any of the diagnoses listed in the Assessment component.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 18 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 18 for Recipient 16 did not comply with the pertinent standards in the Handbooks.
Accordingly, claim no. 18 for Recipient 16 should be denied.
Claim No. 21
Claim no. 21 for Recipient 16 suffered from many of the same deficiencies as previously identified for other claims for this patient.
The Reason for Visit component did not specifically identify the reason for this particular visit, and the laboratory test results to be reviewed were not identified.
The History of Present Illness component consisted of a bullet-point list, rather than a chronological narrative, and it did not discuss the history and progression of the patient's condition and response or lack of response to treatment. Additionally, it contained the same or similar contradictory statements as were previously discussed with respect to this component for other claims for this patient.
The Review of Symptoms component contained many of the same contradictions previously noted with respect to other claims for this recipient. Specifically, "no facial pain" and "facial pain and sinus pain," "neck pain" and "no neck pain," "no sore throat" and "sore throat," "heartburn" and "no heartburn," and "dizziness" and "no dizziness" were noted in this component.
The Physical Findings component also contained contradictory information, such as abnormal and normal orolarynx, wheezing and no wheezing being heard, and abnormal and normal gait and stance.
The Assessment component again appeared to be a carried-forward list of numerous conditions, such as acne, anemia, arthropathy, fatigue, thyroid issues, and obesity that were not supported by documentation in the other components of the medical record for this visit.
The Plan was non-specific and did not address the diagnosed conditions listed in the Assessment component.
Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 21 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible.
Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 21 for Recipient 16 did not comply with the pertinent standards in the Handbooks.
Accordingly, claim no. 21 for Recipient 16 should be denied.
Summary of Grounds for Denial of Claims Under Finding No. 1
Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 1 was that Respondent's documentation was not sufficiently clear and accurate to enable a reviewer to discern the reason for a particular patient visit; the symptoms presenting for a particular visit; the nature, history, and progression of the medical condition; the diagnosis or determination of the medical condition; the treatment; or the therapy and counseling provided to address the medical condition.
In particular, the frequent lack of key details, such as the patient's vital signs, and the frequent and pervasive contradictions in many of the components of the records rendered
them inaccurate, unreliable, and essentially useless in determining the nature of the patient's condition, treating the patient's condition, and documenting that treatment for payment purposes.
Additionally, the diagnoses documented in the Assessments component were rarely well-supported by accurately documented information in the other components, and appeared to be more a "basketful of therapies" that were not specific to the patient and not supported by other information documented in the rest of the medical record. As Dr. Jernigan put it, "if I was looking at [the medical record for] that specific patient, I would have nothing that would be helpful to me."
Dr. Jernigan testified, credibly and persuasively, that the frequent and pervasive inconsistencies in Respondent's records rendered them untrue, inaccurate, and incomprehensible.
The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record.
Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 1.
The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 1.
Finding No. 1: No Documentation or Incomplete Documentation
Recipient No. | Claim No. | Procedure Code | Action | Determined Overpayment Amount $ |
2 | 2 | 99212 | Deny | 48.56 |
2 | 21 | 99213 | Deny | 77.34 |
6 | 1 | 99214 | Deny | 39.46 |
6 | 2 | 99214 | Deny | 39.46 |
6 | 3 | 99214 | Deny | 39.46 |
6 | 4 | 99214 | Deny | 39.46 |
8 | 6 | 99213 | Deny | 79.34 |
9 | 4 | 99214 | Deny | 48.27 |
10 | 10 | 93000 | Deny | 9.67 |
13 | 3 | 99213 | Deny | 83.35 |
16 | 2 | J2550 | Deny | 2.05 |
16 | 3 | 96372 | Deny | 12.42 |
16 | 4 | 93672 | Deny | 12.42 |
16 | 6 | 99214 | Deny | 48.27 |
16 | 15 | 99214 | Deny | 48.27 |
16 | 16 | 99372 | Deny | 12.42 |
16 | 17 | 99214 | Deny | 48.27 |
16 | 18 | 99214 | Deny | 48.27 |
16 | 19 | 96372 | Deny | 12.42 |
16 | 21 | 99214 | Deny | 48.27 |
16 | 22 | 96372 | Deny | 13.43 |
16 | 23 | 99214 | Deny | 48.27 |
16 | 24 | 96372 | Deny | 13.43 |
16 | 25 | 99214 | Deny | 48.27 |
16 | 27 | 99214 | Deny | 48.27 |
16 | 30 | 99213 | Deny | 83.35 |
16 | 31 | 99213 | Deny | 83.35 |
16 | 32 | 99211 | Deny | 23.06 |
16 | 33 | 96372 | Deny | 13.43 |
16 | 34 | 99212 | Deny | 50.56 |
16 | 35 | 96372 | Deny | 13.43 |
16 | 37 | 96372 | Deny | 13.43 |
16 | 38 | 99213 | Deny | 83.35 |
16 | 41 | 99212 | Deny | 50.56 |
16 | 43 | 99212 | Deny | 50.56 |
16 | 54 | 99212 | Deny | 50.56 |
16 | 57 | 96372 | Deny | 14.14 |
18 | 2 | J0969 | Deny | 2.00 |
18 | 3 | 96372 | Deny | 12.42 |
18 | 4 | J1100 | Deny | 0.15 |
18 | 5 | 96372 | Deny | 14.42 |
24 | 1 | 99213 | Deny | 79.34 |
33 | 9 | 99213 | Deny | 77.34 |
34 | 4 | 99214 | Deny | 39.46 |
34 | 7 | 88150 | Deny | 10.00 |
35 | 5 | 99214 | Deny | 39.46 |
35 | 6 | 99214 | Deny | 39.46 |
Total Recipients: 12 | Total Claims: 47 | Determined Total Overpayment Amount: $1,810.95 |
Finding No. 2 – Services Provided Not Medically Necessary
For Finding No. 2, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 2, claim nos. 11, 13, and 19; Recipient 16, claim nos. 15, 17, and 30; and Recipient 34, claim no. 7. However, because claim nos. 15, 17, and 30 are being denied in this Recommended Order on the basis of Finding No. 1, they are not addressed in this discussion of claims denied on the basis of Finding No. 2, and they are not counted toward the
amount of reimbursement determined in this Recommended Order to be owed.
Additionally, because the following claims previously have been denied in this Recommended Order on the basis of Finding No. 1, they have not been counted toward determining the overpayment amount for claims denied on the basis of Finding
No. 217/: Recipient 2, claim no. 21; Recipient 16, claim nos. 15,
17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and
Recipient 34, claim nos. 4 and 7.
Accordingly, a total of eight claims in dispute on the basis of Finding No. 2 have been addressed in this Recommended Order.
The CPT Codes
The 2012, 2013, and 2014 versions of the Current Procedural Terminology manuals (collectively, "CPT Manuals") establish the CPT Codes that apply in billing services to Medicaid.18/
The following CPT Codes are pertinent to the claims denied on the basis set forth in Finding No. 2: 99211, 99212, 99213, and 99214. These CPT Codes indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service.
Dr. Jernigan regularly bills Medicaid for services she provides using these CPT Codes. She is very familiar with their use and with the nature of the medical services that are appropriately billed under each code.
CPT Code 99211
The CPT Manuals define CPT Code 99211 as: "Office or other outpatient visit for the evaluation and management of an established patient, that 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."
CPT Code 99212
The CPT Manuals define CPT Code 99212 as:
Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of
these 3 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.
CPT Code 99213
The CPT Manuals define CPT Code 99213 as:
Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of
these 3 key components:
An expanded problem focused history;
An expanded problem focused examination;
Medical decision making of low complexity.
Counseling and 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.
CPT Code 99214
The CPT Manuals define CPT Code 99214 as:
Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of
these 3 key components:
A detailed history;
A detailed examination;
Medical decision making of moderate complexity.
Counseling and/or coordination of care with other physicians, other qualified health care professionals, 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. Typically,
25 minutes are spent face-to-face with the patient and/or family.
In determining whether a service provided is medically necessary for purposes of Medicaid billing, the focus is on whether there is sufficient documentation to support the necessity of the service provided to the patient.
The documentation submitted to support a claim is reviewed to determine whether there is sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided.
A. Recipient 2 Claim No. 11
Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, while the patient presented with conditions that may indicate a urinary tract infection or pelvic inflammatory disease, those diagnoses were only two in a list of 32 assessments, so the record did not clearly indicate the specific diagnosis for her condition at this specific visit. Further, the treatment consisted of a topical medication used to treat arthritis and a medication used to treat
painful menstruation, rather than a medication used to treat a urinary tract infection or pelvic inflammatory disease.
Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied.
Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive.
Accordingly, claim no. 11 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary.
Claim No. 13
Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, there were no physical examination findings that appeared to be specifically related either to the patient's condition at that visit, or to the treatment provided. For example, Dr. Jernigan specifically noted that while there was an assessment of vulvodynia and the patient was treated for a yeast infection, the medical record
does not note an examination of the patient's genitalia having been performed to support that assessment and treatment.
Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied.
Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive.
Accordingly, claim no. 13 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary.
Claim No. 19
Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Here, the stated reason for the visit included fatigue, somnolence and weakness with problems sleeping, arthralgias with muscle pain and tenderness, headache and dizziness, and snoring with acid reflux. However, the assessment contained a list of 33 diagnoses, many, if not most, of which did not appear to be related to the stated reason for
the visit. Additionally, the treatment did not appear appropriate for the conditions stated as the reason for this specific visit.
Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied.
Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive.
Accordingly, claim no. 19 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary.
Summary of Grounds for Denial of Claims under Finding No. 2
In sum, Dr. Jernigan determined that the claims denied as not medically necessary did not contain sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided.
The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible,
accurate, and supported by the documentary and other evidence in the record.
Pursuant to the parties' stipulation noted above, the undersigned has applied Dr. Jernigan's analysis in reviewing each of the other claims disputed on the basis of Finding No. 2.
The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 2.
Finding No. 2 – Not Medically Necessary
Recipient No. | Claim No. | Procedure Code | Action | Determined Overpayment Amount $ |
2 | 11 | 99213 | Deny | 81.35 |
2 | 13 | 99213 | Deny | 81.35 |
2 | 19 | 99213 | Deny | 77.34 |
16 | 36 | 99211 | Deny | 23.06 |
16 | 39 | 99212 | Deny | 50.56 |
16 | 45 | 99212 | Deny | 50.56 |
16 | 47 | 99211 | Deny | 23.06 |
35 | 4 | 99214 | Deny | 39.46 |
Total | Total No. | Determined | ||
Recipients: | of Claims: | Total | ||
3 | 8 | Overpayment Amount: | ||
$426.74 |
Finding No. 3 – Established Patients Billed as New Patients
As discussed above, a new patient is one who has not received any professional services from a physician or another
practitioner of the same specialty who belongs to the same provider group, within the past three years.
The two claims in dispute that were denied on the basis set forth in Finding No. 3, that they were not new patients are Recipient 21, claim no. 1; and Recipient 23, claim no. 1. These claims were downcoded to reflect that the patient was an established patient, rather than a new patient.
The CPT Codes pertinent to this Finding are 99203, 99204, 99213, and 99214. CPT Codes 99213 and 99214 previously have been defined in the findings pertaining to Finding No. 2, above.
CPT Code 99203
The CPT Manuals define CPT Code 99203 as:
Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components:
A detailed history;
A detailed examination;
Medicaid 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 moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family.
CPT Code 99204
The CPT Manuals define CPT Code 99204 as:
Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components:
A comprehensive history;
A comprehensive examination;
Medicaid 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 45 minutes face-to-face with the patient and/or family.
Recipient 21 Claim No. 1
Recipient 21, claim no. 1 was adjusted from CPT Code 99204 to CPT Code 99214.
Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged."
This notation would not be appropriate for a new patient, but would be appropriate for an established patient.
Dr. Jernigan noted that had she determined this claim was for a new patient, it would have been denied, rather than adjusted downward, because the supporting documentation did not
contain the patient's comprehensive history, which is one of the three components required in the documentation to support a claim billed under CPT Code 99204.
Instead of denying this claim, Dr. Jernigan determined that under the documentation submitted, it should be billed under CPT Code 99214, as a claim for an established patient having a medical problem of moderate to high severity, and for which two of the three components are documented in the medical record.
Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient, was credible, supported by the evidence, and persuasive.
Accordingly, claim no. 1 for Recipient 21 should be billed under CPT Code 99214, rather than CPT Code 99204.
Recipient 23
Claim No. 1
Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient.
Accordingly, she reviewed the claim as one for an established patient, and, based on the documentation in the
medical record, determined that the presented problem was one of low to moderate severity and at least two of the required components were present in the record.
For these reasons, Dr. Jernigan determined that this claim should be billed under CPT Code 99213, rather than under CPT Code 99203.
Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient was credible, supported by the evidence, and persuasive.
Accordingly, claim no. 1 for Recipient 23 should be billed under CPT Code 99213, rather than CPT Code 99203. Summary of Grounds for Downcoding Claims Under Finding No. 3
In sum, Dr. Jernigan's determined that the notations in the Past Medical History, Family History, and Social History components of the documentation submitted for these claims, as well as the lack of other components in the record, did not support billing these claims as new patient claims, but would support billing them as established patient claims.
The undersigned finds Dr. Jernigan's analysis and opinion regarding the downcoding of these claims to bill them as established, rather than new, patient claims to be credible, accurate, and supported by evidence in the record.
The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 3.
Finding No. 3 – Incorrectly Billed as New Patient
Recipient No. | Claim No. | Procedure Code | Action | Determined Overpayment Amount $ |
21 | 1 | 99204 | Adjusted to 99214 | 25.38 |
23 | 1 | 99203 | Adjusted to 99213 | 37.66 |
Total Recipients: 2 | Total Claims: 2 | Determined Total Overpayment Amount: $63.04 |
Finding No. 4 – Level of Service Not Supported
Claims denied on the grounds set forth in Finding No. 4 of the FAR did not contain documentation sufficient to support the higher level of service billed, but did contain
documentation sufficient to support a lower level of service than that billed.
CPT Codes 99212, 99213, 99214, and 99204 are pertinent to this Finding, and have been previously defined in the findings pertaining to Findings No. 2 and 3, above. As previously noted, CPT Codes 99212, 99213, and 99214 indicate a progressive increase in the complexity of the medical visit, so require progressively
greater levels of documentation to justify billing Medicaid for the service.
For Finding No. 4, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; and Recipient 16, claim nos. 29 and 52.
Recipient 8
Claim No. 4
Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Despite the extensive description in the Reason for Visit component and the extensive list of conditions noted in the Assessment component, the visit ultimately was to address a urinary tract infection, which is a problem of low to moderate complexity and involved the components which would justify billing the claim under CPT
Code 99213.
Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 4 for Recipient 8 is correctly adjusted from CPT Code 99214 to CPT Code 99213.
Recipient 9
Claim No. 2
Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This visit was a follow-up without any significant changes in the findings documented in the components of previous visits. There was no documentation in any of the components for this visit which would indicate that it involved problems that were of moderate to high complexity, and that it entailed components that would justify billing the claim under CPT Code 99214. The documentation for this visit indicated a problem of low to moderate complexity and entailed the components that would justify billing the claim under CPT Code 99213.
Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 2 for Recipient 9 is correctly adjusted from CPT Code 99214 to CPT Code 99213.
Recipient 10 Claim No. 3
Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This claim entailed extensive internal inconsistencies and contained numerous contradictory notations, which affect the reviewer's ability to determine the purpose of the visit and the appropriate
type and level of treatment. Here, Dr. Jernigan opined that this visit ultimately was a follow-up for hypertension and diabetes, and that the patient's condition had not changed from the previous visit. The documentation did not indicate that this visit entailed problems that were of moderate to high complexity, nor did it document the components would justify billing the claim under CPT Code 99214. Rather, the documentation for this visit indicated a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213.
Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 3 for Recipient 10 is correctly adjusted from CPT Code 99214 to CPT Code 99213.
Recipient 13 Claim No. 1
Dr. Jernigan determined that this claim should be adjusted from CPT Code 99204 to CPT Code 99214. The documentation for this claim did not support billing the visit under CPT Code 99204, for a new patient, because it did not contain sufficient information that a comprehensive examination was performed, which is required by this CPT Code. Additionally, the documentation lacked any substantial discussion of the patient's Social History, Family History, or Past Medical
History——information that, according to Dr. Jernigan, would be particularly important for a new patient——especially one who, per the documentation in the record, was sexually abused. Further, the Past Medical/Surgical History, Social History, and Family History components all listed this patient's condition as "unchanged," indicating that the patient must have been an established, rather than a new, patient. These deficiencies in the record for this claim did not justify billing the claim under CPT Code 99204, for a new patient. However, due to the severity of the patient's condition, the treatment documented in the record for this visit entailed the components under CPT
Code 99214 for an established patient.
Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 1 for Recipient 13 is correctly adjusted from CPT Code 99204 to CPT Code 99214.
Recipient 16
Claim No. 29
Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Dr. Jernigan found much of the information documented for this claim to be incredible. For example, the patient is a 19-year old male, but the notations in the record state such things as "parental concerns about baby's growth" and "assessment for menopause
performed." Dr. Jernigan ultimately determined that this visit was a follow-up to address hypothyroidism and that thyroid medication was prescribed as a treatment for this condition.
This visit concerned a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213, rather than a more complex problem that would justify the level of service under CPT Code 99214.
Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 29 for Recipient 16 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Claim No. 52
Dr. Jernigan determined that this claim should be adjusted from CPT Code 99213 to CPT Code 99212. Here, the Reason for Visit stated that the visit was, among other things, to address a skin rash. Although the documentation for this claim contained numerous inconsistencies, Dr. Jernigan was able to discern that the patient had two dermatological conditions that would support the prescription of Doxycycline. According to
Dr. Jernigan, skin issues are relatively easy to see and treat, which would justify billing this claim under CPT Code 99212, for a minor problem that would entail the components for that CPT Code, rather than a more complex problem that would justify the level of service under CPT Code 99213.
Dr. Jernigan's analysis and opinion regarding this claim was credible and persuasive. Accordingly, it is determined that claim no. 52 for Recipient 16 is correctly adjusted from CPT Code 99213 to CPT Code 99212.
Summary of Grounds for Denial of Claims Under Finding No. 4
Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 4 was that while a basis for billing Medicaid could be discerned from the medical records for the claim, the documentation in those records was not consistent with the symptoms or confirmed diagnosis, so did not reflect the level of service that could safely be furnished.
The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the grounds stated in Finding No. 4 to be credible, supported by the evidence, and persuasive.
Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 4.
The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 4.
Finding No. 4 – Incorrectly Billed at Higher Level of Service
Recipient No. | Claim No. | Procedure Code | Action | Determined Overpayment Amount $ |
8 | 4 | 99214 | Adjusted to 99213 | 38.79 |
9 | 2 | 99214 | Adjusted to 99213 | 15.71 |
10 | 3 | 99214 | Adjusted to 99213 | 36.79 |
13 | 1 | 99204 | Adjusted to 99214 | 122.14 |
16 | 29 | 99214 | Adjusted to 99213 | 38.79 |
16 | 52 | 99213 | Adjusted to 99212 | 32.79 |
17 | 1 | 99214 | Adjusted to 99213 | 23.32 |
21 | 2 | 99214 | Adjusted to 99213 | 14.85 |
22 | 2 | 99214 | Adjusted to 99213 | 73.87 |
30 | 3 | 99214 | Adjusted to 99213 | 12.85 |
32 | 2 | 99214 | Adjusted to 99213 | 32.56 |
35 | 1 | 99204 | Adjusted to 99202 | 36.77 |
Total Recipients: 11 | Total Claims: 12 | Determined Total Overpayment Amount: $479.23 |
Findings of Ultimate Fact
Pursuant to the foregoing, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program for the disputed and undisputed claims in this proceeding.
Respondent defends its position that many of the claims in dispute should be adjusted downward in this proceeding, rather than denied, by asserting that the inaccuracies and lack of comprehensibility in the documentation for the claims were due to the flaws and defects in the Intergy EHR system, rather than any deficiency on his part in diagnosing or treating his patients or in properly documenting their visits. In support of this position, Respondent notes that in many cases, the documentation provided to support a claim did contain——among the many listed conditions and assessment——a diagnosis that matched the reason for the visit.
There is little question in the undersigned's mind that Respondent actually provided the services in the claims he billed to Medicaid. However, the issue in this proceeding is not whether the provider did, in fact, provide the services or accurately diagnose and treat the patient's condition. Rather, the issue is whether the documentation submitted to Petitioner to support the Medicaid-billed claims is true, accurate, comprehensible, and demonstrates the medical necessity of the
billed claim, as required by section 409.913 and the Handbooks. Unfortunately, due to the substantial flaws in the Intergy system and Respondent's difficulty in using that system, his records did not comply with those standards, so do not support the billed claims.
As the enrolled Medicaid provider, Respondent is ultimately responsible for the completeness, accuracy, and comprehensibility of the documentation submitted in support of his claims billed to Medicaid. § 409.913(7), Fla. Stat. The Handbooks, section 409.913, and applicable rules do not recognize, as a defense to actions seeking reimbursement for overpayments, that deficiencies in the provider's records may be excused due to poor or dysfunctional EHR systems.
Based on the foregoing, the undersigned found
Dr. Jernigan's analyses and opinions credible, supported by the competent substantial evidence in the record, and persuasive.
Accordingly, it is determined, as a matter of ultimate fact, that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program in the amount of $72,084.43 for the disputed and undisputed claims in this proceeding.
However, the undersigned determines that Petitioner did not prove the overpayments by clear and convincing evidence.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to, and subject matter of, this proceeding. §§ 120.569, 120.57(1), Fla. Stat.
Petitioner is authorized to recover Medicaid overpayments from providers. § 409.913(10), (11)(a), (15)(j), and (30), Fla. Stat. An overpayment is defined as "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." § 409.913(1)(e), Fla. Stat.
Petitioner is also authorized to impose sanctions as appropriate. § 409.913(16), Fla. Stat.
The statutes, rules, and Handbooks in effect during the period for which the services being audited were provided apply in a proceeding in which Petitioner seeks to recover an overpayment of Medicaid claims. Toma v. Ag. for Health Care
Administration, Case No. 95-2419 (Fla. DOAH July 26, 1996; Fla.
AHCA Sept. 24, 1996).
Petitioner bears the burden of proof, by a preponderance of the evidence, that Respondent was overpaid by Medicaid for the claims billed. S. Med. Servs. v. Ag. for Health
Care Admin., 653 So. 2d 440, 441 (Fla. 3d DCA 1995)(per curiam); Southpointe Pharmacy v. Dep't of HRS, 596 So. 2d 106 (Fla. 1st
DCA 1992).
Section 409.913(7)(e) and (f) requires providers to present claims for reimbursement in accordance with all Medicaid rules, regulations, and handbooks, and to appropriately document all good and services provided.
Section 409.913(21) states: "[w]hen making a determination that an overpayment has occurred, the agency shall prepare and issue an audit report to the provider showing the calculation of the overpayment."
Section 409.913(22) states: "[t]he audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." Consistent with this provision, Petitioner can establish a prima facie case of overpayment by proffering a properly-supported audit report, which must be received in evidence. Colonial Cut-Rate Drugs v.
Ag. for Health Care Admin., Case No. 03-1547MPI (Fla. DOAH
Mar. 14, 2005; Fla. AHCA May 27, 2005); Full Health Care, Inc. v.
Ag. for Health Care Admin., Case No. 00-4441 (Fla. DOAH Jun. 25,
2001; Fla. AHCA Oct. 4, 2001).
Section 409.913(7)(f) and the Handbooks require providers to submit claims that are true, accurate, comprehensible, and documented by records created contemporaneously with the provision of the service. The medical records must fully and properly document the medical basis and specific need for the service.
Section 409.913(22) states that a "[p]rovider may not present records to contest an overpayment or sanction unless such records are contemporaneous and, if requested during the
audit process, were furnished to the agency or its agent upon request."
To be eligible for coverage by Medicaid, a service must be "medically necessary," as defined in section 409.913(1)(d). This provision states:
"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.
In this case, Petitioner presented credible, persuasive evidence establishing that the audit giving rise to this proceeding was properly conducted, and that Dr. Jernigan, as the peer reviewer, substantively reviewed all of the medical records submitted to support Respondent's claims according to the applicable statutory and Handbook standards, and made the ultimate decisions regarding whether those claims should be approved, denied, or adjusted.
Petitioner presented documentary and testimonial evidence that supports the denial and adjustment, addressed above, of the claims at issue in this proceeding.
Based on these standards and the foregoing Findings of Fact, the undersigned concludes that Petitioner proved, by a preponderance of the evidence, that Respondent was paid for claims that failed to comply with the laws, rules, and regulations governing Medicaid providers during the Audit Period.
Therefore, it is concluded that Petitioner should enter a final order finding that Respondent was overpaid a total of $72,084.43 for the claims billed for services provided during the Audit Period that are disputed in this proceeding.
The 2010 version of Florida Administrative Code
Rule 59G-9.070, Administrative Sanctions on Providers, Entities, and Persons, was in effect during the Audit Period, so applies to this proceeding.
Rule 59G-9.070 provides, in pertinent part:
Definitions.
* * *
(f) "Fine" is a monetary sanction. The amount of a fine shall be as set forth within this rule.
* * *
(h) "Offense" means the occurrence of one of more violations as set forth in a final audit report. For purposes of the progressive
nature of sanctions under this rule, "offenses" are characterized as "first", "second", "third", or "subsequent" offenses; subsequent offenses are any occurrences after a third offense.
* * *
(n) "Sanction" shall be any monetary or non- monetary disincentive imposed pursuant to this rule; a monetary sanction may be referred to as a "fine."
* * *
Limits on sanctions.
(a) Where a sanction is applied for violations of Medicaid laws (under paragraph (7)(e) of this rule), for a pattern of erroneous claims (under paragraph (7)(h) of this rule), or shortages of goods (under paragraph (7)(n) of this rule), and the violations are a "first offense" as set forth in this rule, if the cumulative amount of the fine to be imposed as a result of the violations giving rise to that overpayment exceeds 20% of the amount of the overpayment, the fine shall be adjusted to 20% of the amount of the overpayment.
* * *
(7) Sanctions. In addition to the recoupment of the overpayment, if any, the Agency will impose sanctions as outlined in this subsection. Except when the Secretary of the Agency determines not to impose a sanction, pursuant to section 409.913(16)(j), F.S., sanctions shall be imposed as follows:
* * *
(e) For failure to comply with the provisions of the Medicaid laws: For a first offense, $1,000 fine, per claim found to be in violation.
It is well-established that in order to impose a fine, Petitioner must establish the factual grounds for doing so by clear and convincing evidence. Dep't of Child. & Fams. v. Davis
Fam. Day Care Home, 160 So. 3d 854, 857 (Fla. 2015). As found above, the undersigned determined that although Petitioner demonstrated the existence of the overpayments by a preponderance of the evidence, it failed to prove them by clear and convincing evidence in this proceeding. Accordingly, it is concluded that no fine should be imposed in this proceeding.
Petitioner is authorized to recover costs pursuant to section 409.913(23). At the time Petitioner issued the FAR, it was seeking costs in the amount of $1,708.08. Additional costs have been incurred in preparing for and conducting the final order and filing post-hearing submittals. Pursuant to section 409.913(23), upon prevailing in this proceeding, Petitioner is entitled to recover, as costs, all investigative, legal, and expert witness costs.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
Petitioner, Agency for Health Care Administration, enter a final order directing Respondent to repay to the Agency the sum of $72,084.43 in overpayments.
Pursuant to section 409.913(23)(a), Petitioner, as the prevailing party in this proceeding is, entitled to recover, as costs, all investigative, legal, and expert witness costs as the prevailing party is granted. If the amount of these costs cannot be stipulated by the parties, Petitioner may request a hearing solely to establish the amount of costs it is entitled to recover in this proceeding.
DONE AND ENTERED this 12th day of March, 2018, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2018.
ENDNOTES
1/ The medical services that are the subject of the audited claims were rendered during the period starting on
January 1, 2012, and ending on June 30, 2014. Therefore, the versions of section 409.913, Florida Statutes, in effect during that period——i.e., the 2011, 2012, 2013, and 2014 versions——apply to this proceeding. In 2013, the Legislature amended
section 409.913, effective July 1, 2013, to make changes to certain provisions in that statute which are not pertinent to this proceeding. Therefore, this Recommended Order refers to
section 409.913 and its sub-parts without reference to the year of codification.
2/ See paragraph 6, below. The Audit Period in this proceeding commenced on January 1, 2012, and ended on June 30, 2014.
Respondent's Medicaid claims for services rendered during this period that were submitted to and paid by Petitioner under the Medicaid program were the subject of the audit that has given rise to this proceeding.
3/ To be an enrolled Medicaid provider, the provider enters into a contract with Petitioner on a voluntary basis. A condition of being enrolled as, and remaining, a Medicaid services provider is that the provider must fully comply with all state and federal laws pertaining to the Medicaid program, including pertinent provisions of the Medicaid Provider Handbooks, which have been incorporated by reference into Petitioner's rules.
4/ Dr. Jernigan is a board-certified family practice physician, who has been enrolled as a Medicaid provider since 1985.
Approximately 45 percent of her patients are Medicaid recipients. She is very familiar with the Florida Medicaid Provider Handbooks applicable to this case, and she follows their procedures on a regular basis in billing Petitioner for payment for services rendered to Medicaid recipients. Additionally, she is experienced in, and has a comprehensive understanding of, the use of electronic health records ("EHR") in rendering medical services and documenting rendered services, as well as using EHR in billing for Medicaid services rendered. The persuasive evidence establishes that Dr. Jernigan is an expert in family medicine, and that she also is an expert with respect to submitting and evaluating claims in Medicaid overpayment cases. As such, she was accepted an expert in these areas. Additionally, Dr. Jernigan has served as a peer reviewer for Petitioner numerous times over the course of several years. She meets the qualifications and requirements of a "peer," as defined in section 409.9131, Florida Statutes (2017), and was accepted in this case as a peer for purposes of serving as a peer reviewer of Medicaid claims pursuant to sections 409.913 and 409.9131.
5/ If a claim is approved, Petitioner will not seek reimbursement of the amount paid to Respondent for the claim. If the claim is denied, Petitioner will seek reimbursement of the amount paid to Respondent for the claim.
6/ Although Reynolds and Dr. Jernigan both used red and green ink to make notations on the worksheets that were admitted into
evidence, their notations were distinguishable from each other. Reynolds used light red ink on her first set of notations and light green ink on her second set of notations. Dr. Jernigan used dark green ink on her first set of notations and dark red ink on her second set of notations.
7/ In sum, the evidence establishes that Reynolds did not function as a peer reviewer in the audit.
8/ The statistical formula for cluster sampling——which is a valid and accepted method for determining the total overpayment amount, as required by section 409.913(20)——is:
For purposes of this formula, a "cluster" comprises all claims relating to an individual patient in the sample population.
9/ The PAR contained four grounds, or "Findings," for Petitioner's determination that Respondent should not have been paid by Medicaid for claims for which he billed and was paid. At least one of these Findings applied to each claim determined ineligible for payment by Medicaid, and more than one of these Findings applied to several of the claims.
10/ Petitioner contacted Respondent, rather than Respondent's billing company, because Respondent, as the enrolled Medicaid provider, is required by section 403.913(9), Florida Statutes, and the Handbooks to retain all medical, professional, financial, and business records pertaining to services and goods furnished
to a Medicaid recipient and billed to Medicaid. The competent substantial evidence in this case establishes that Respondent had opportunities during the audit and after its completion, to provide documentation to support his claims for Medicaid services provided during the Audit Period.
11/ For brevity, when these handbooks are discussed collectively, they are referred to by the pertinent year, where pertinent, and the term "Handbooks."
12/ The following claims were denied on the bases of both Finding No. 1 (lack of sufficient documentation) and Finding No. 2 (failure to demonstrate medical necessity of the service provided): Recipient 2, claim no. 21; Recipient 16, claim
nos. 15, 17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim
no. 1; and Recipient 34, claim nos. 4 and 7. Petitioner did not "double-count" these claims for purposes of seeking reimbursement; in other words, Petitioner only counted the claim once for purposes of determining the amount to be disallowed——i.e., reimbursed by Respondent——for the claim. Likewise, in this Recommended Order, the undersigned has reviewed these claims and determined that all should be denied on the basis of Finding No. 1 in the FAR, so has not addressed them on the basis of Finding
No. 2 in the FAR, and has not double-counted these claims in determining the amount of reimbursement owed by Respondent.
13/ See note 12, above. Because the following claims were disallowed on the basis of Finding No. 1, they have not been addressed in the overpayment determinations applicable to Finding No. 2: Recipient 2, claim no. 21; Recipient 16, claim nos. 15,
17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and
Recipient 34, claim nos. 4 and 7.
14/ Rather than using Intergy, Dr. Jernigan uses three other EHR systems in her practice. However, she is very knowledgeable regarding the purpose of EHR systems and how they work, and she explained that all EHR systems have certain basic components that are the same or similar to each other.
15/ An example would be documenting whether a patient who presents with a cough is a smoker.
16/ An example would be where a patient presents with hypertension, and the provider determines and documents that their relatives also suffer from hypertension.
17/ See notes 12 and 13, above.
18/ The descriptions of the CPT Codes pertinent to this proceeding are the same in the 2012, 2013, and 2014 versions of the CPT Manuals. Accordingly, the version of the CPT Manual in effect at the time of a claim is not specifically identified in this discussion.
COPIES FURNISHED:
Kevin Douglas Dewar, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Alexandria Suarez, Esquire
Law Office of Alexandria Suarez, P.A. 27104 South Dixie Highway
Miami, Florida 33032 (eServed)
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Justin Senior, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308 (eServed)
Stefan Grow, General Counsel
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Thomas M. Hoeler, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Kim Kellum, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
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 |
|---|---|---|
| Aug. 16, 2018 | Agency Final Order | |
| Apr. 20, 2018 | Agency Final Order | |
| Mar. 12, 2018 | Recommended Order | Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid for claims billed to Medicaid. Petitioner did not prove, by clear and convincing evidence, that Respondent violated the Medicaid laws, so no fine should be imposed. |
BOARD OF MEDICAL EXAMINERS vs. ALFONSO RODRIGUEZ-CUELLAR, 17-002240MPI (2017)
MARIA LOURDES BURGOS, M.D. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 17-002240MPI (2017)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs NEELAM TANEJA UPPAL, M.D., 17-002240MPI (2017)
JAIME VERGEL vs AGENCY FOR HEALTH CARE ADMINISTRATION, 17-002240MPI (2017)
