STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1289

) SIHAM K. TOMA, M.D., F.A.A.P. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on September 11, 1981, in St. Augustine, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert A. Weiss, Esquire

Medicaid Staff Counsel Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Suite 322

Tallahassee, Florida 32301

For Respondent: John F. Stroud, Esquire

503 East Monroe Street Jacksonville, Florida 32202

PROCEDURAL BACKGROUND

These proceedings began on March 31, 1981 when Petitioner, Department of Health and Rehabilitative Services (HRS) notified Respondent, Dr. Siham K. Toma, that she had received excess Medicaid payments in the amount of $2,047.72. On April 13, 1981 Dr. Toma filed a request for an administrative hearing on the issue of whether overpayment had been paid. The case was forwarded to the Division of Administrative Hearings on May 1, 1981 for the assignment of a Hearing Officer and the scheduling of a final hearing.

At the final hearing Petitioner presented Mr. Alex Syarto as its witness and introduced Exhibits 1-3 which were received into evidence. Respondent presented herself as her witness and offered no exhibits.

At the conclusion of the hearing pursuant to Section 120.57(1)(b)4.

Florida Statutes (Supp. 1980) the parties were informed of their right to file proposed findings of fact and proposed recommended orders. Both parties filed proposed orders containing findings of fact. To the extent the proposed

findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here. Agrico Chemical Company v Department of Environmental Regulation, 356 So.2d 759. 763 (Fla. 1st D.C.A. 1979).

FINDINGS OF FACT

1. Dr. Siham K. Toma is a Florida licensed physician practicing in St. Augustine, Florida. She specializes in pediatrics. Dr. Toma is a provider of physician services to the Medicaid program administered by HRS.

   
   

2. During the period of January 1, 1979 to October 27, 1980, she submitted bills to HRS for services she rendered to Medicaid patients. In 424 instances during that time Dr. Toma billed as "new patient" services the care she rendered to patients whom she had treated previously. An example is the billing for Dr. Toma's patient, Hazel Hardy. Dr. Toma billed "new patient" services for Hazel Hardy on September 12, 1978. Subsequently she again billed for "new patient" services given to Hazel Hardy on January 12, 1979 and later Dr. Toma billed for "new patient" services rendered to Hazel Hardy on September 15, 1980.

   
   

3. Dr. Toma's billing for the patient Amile Harris provides another example of multiple "new patient" billing. Between December 29, 1978 and August 26, 1980, she made claims for twelve "new patient" office visits. In one instance these visits were as close together as two days apart (January 22, 1979 and January 24, 1979).

   
   

4. As a result of the foregoing 424 claims Dr. Toma

   has been paid $2,047.72 more than she would have been paid if she had filed the claims as "established patient" visits.

   
   

5. HRS seeks to recover for incorrect billing in the period of January 1, 1979 until October 27, 1980 pursuant to that portion of Section 10C-7.38, Florida Administrative Code which became effective on January 1, 1979, and established the distinction between new patients and established patients.

   
   

6. In January, 1979 a "Medicaid Information Update" was sent by SDC Integrated Services, Inc. 1/ to all Medicaid service providers. It stated in part:

   
   

   Procedure Codes 90000 - 90026 are to be used when billing for new patients only.

   Once a patient has been seen by a physician, subsequent office visits are to be billed with procedure codes 90030 - 90087

   (Florida Relative Value Studies, page 23.)

   
   

7. Dr. Toma does not remember receiving the January, 1979 Update. Once she was individually notified by the Department in March, 1981 concerning the Department's interpretation of this rule, Section 10C-7.38, Florida Administrative Code, she modified her billing practices to follow the Department's directions. The notice to Dr. Toma sent on March 31, 1981 states in part:

   
   

   Ref. (a) Florida Administrative

   Rule 10C-7.38, Revised effective January 1, 1978

   1. 1975 Florida Relative Value Studies, page 23,

      February 1976

      
      

   2. Medicaid Information Update, Number 6, January 1979

      
      

      Dear Dr. Toma:

      
      

      Reference (a) stipulates that "Medicine charges will be computed by utilizing the appropriate procedure codes listed in the Florida Medical Association's 1975 Florida Relative Value Studies.

      
      

      Reference (b) defines a "new patient" as one "new to the physician, office, or facility." An "established patient" is defined as one "known to the physician and/or whose records are normally available."

      
      

      Reference (c) states that procedure codes 90000 through 90026 are to be used when billing for new patients only, and once a patient has been seen by a

      physician, subsequent office visits are to be billed using procedure codes 90030 through 90087.

      
      

      An analysis of Medicaid claims submitted by your office for services provided on and after January 1, 1979 and paid (adjudicated) by Medicaid through October 27, 1980 (review period) has indicated that in some instances you billed and were paid for more than one new patient office visit for the same reci- pient during that period. A total number of 424 excess new patient office visit claims has been

      identified, resulting in an overpayment to your office of $2,047.72.

      
      

      The specific claims submitted by your office resulting in excess payments for new patient office visits are indicated in the enclosed printout.

      
      

      Please note that if a recipient/patient was seen for an initial office visit in 1978, that person is considered to be an established patient for the purpose of evalua- ting payments for office visits during the review period.

      
      

8. It is frequently true that the examination and treatment of a child patient by a physician takes more of the doctor's time than would the similar treatment of an adult patient. Children are more volatile in their physical changes than adults. As a result a pediatrician must spend more time bringing the patient's medical history up to date when a child comes in on subsequent office visits. Additionally, young children are unable to relate or explain symptoms to the treating physician in the manner that an adult can. This fact means more diagnostic time is required for a child patient.

9. The claim codes under which physician service providers submit claims to HRS make no distinction between services rendered to adult patients and services provided to children.

   
   

10. No Medicaid payments to Dr. Toma have been withheld from her because of the Department's belief that she was overpaid for those claims she designated as new patient" services between January 1, 1979 and October 27, 1980.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes.

    
    

12. Dr. Toma is a provider of physician services as defined in Section 10C-7.38, Florida Administrative Code. That rule which governs the procedure for the submission of Medicaid bills to HRS provides at paragraph 4(a):

    
    

    All claims for payment shall utilize the procedure codes and descriptions

    found in the 1975 Florida Relative Value Studies (RVS) except for those additional codes promulgated as approved by the Department. Physician services are reim- bursable within certain limitations.

    
    

13. The Relative Value Studies as amended provide that codes 90000 through 90026 are for services rendered to new patients only. Once a patient has been seen by a physician billing for all subsequent office visits should be made using codes 90030 through 90087. Section 10C-7.38(1), Florida Administrative Codes provides the following definitions for distinguishing between a new and an established patient:

    
    

    1. 'New patient' means one new to the physician, office, or facility. The initial comprehensive history and examina- tion need not be done at the time of the first visit.

       
       

    2. 'Established patient' means one known to the physician and/or whose records are normally available.

    
    

14. In 424 instances between January 1, 1979 and October 27, 1980, Dr. Toma has billed for "new patient" visits when according to the rule, she should have billed for "established patient" visits. This error on her part has caused the overpayment to her of $2,047.72.

    
    

15. Dr. Toma has not seriously contested the Department's evidence concerning the payments made to her and the correctness of her billing codes. She argues that Section 10C-7.38, Florida Administrative Code is unconstitutional as applied to her practice of pediatrics. Because she spends more time in rendering care to a child when compared to the time required for providing the same service to an adult, she alleges that the failure of the rule to distinguish between adult services and pediatric services is a denial of equal protection to her. Her constitutional argument against the validity of the rule may not be considered here.

16. This case was filed with the Department of Health and Rehabilitative Services as an apparent request for a Section 120.57(1) administrative hearing. Dr. Toma's letter does not explicitly specify what kind of hearing she wanted, however it is clear from her letter that she was not filing a Section 120.56 rule challenge petition. Her letter in its entirety states:

    
    

    April 9, 1981

    
    

    Robert V. Peirce, Supervisor Medicaid Investigative Section

    Department of Health and Rehabilitative Services 1317 Winewood Boulevard

    Tallahassee, Florida 32301 Dear Mr. Peirce,

    In receipt of your letter of March 31, 1981 I would like you to allow me to have an administrative hearing to discuss this whole matter of the billing and the fees paid. I would also like to bring up the particular following items as listed.

    
    

    Sincerely Yours,

    
    

    /s/ Siham K. Toma MD FAAP PA

    
    

    SKT/lkw

    
    

17. Section 120.56, Florida Statutes provides in part:

    
    

    1. Any person substantially affected

       a rule may seek an administrative determina- tion of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

       
       

    2. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. The petition shall be filed

    with the division [of administrative hearings] which shall, immediately upon filing, forward copies of the petition to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division director shall, if he determines that the petition complies with the above requirements, assign a hearing officer who shall conduct a

    hearing within 30 days thereafter, unless the petition is withdrawn.

18. The filing of a petition in compliance with the foregoing section is a jurisdictional prerequisite to a rule challenge before the Division of Administrative Hearings. That filing may not be circumvented by an attack on a rule during the pendency of a Section 120.57(1) hearing. Miami Tiresoles, Inc.

    v. Department of Revenue, Case No. 80-517 (Florida Division of Administrative Hearings, Recommended Order March 25, 1981).

    
    

19. If in the course of a Section 120.57(1) proceeding a party intends to contest the validity of a rule the proper way for it to proceed is to file a separate petition pursuant to Section 120.56 and then request that the Section

    120.56 hearing be consolidated with the existing Section 120.57(1) hearing. That was not done here. Until such time as a proper challenge pursuant to Section 120.56 is made to Section 10C-7.38, Florida Administrative Code, the Hearing Officer may not render a determination on the validity of that rule. For this reason the rule must be accepted as valid for the balance of these proceedings.

    
    

20. The recovery of overpayments made to Medicaid service providers is governed by Section 409.335, Florida Statutes (Supp. 1980). It provides authority for the Department to require a provider who has received an overpayment to repay the excess amount. Since the Department has not already withheld any payments from Dr. Toma for the amount in issue here, HRS is entitled to a full recovery of $2,047.72.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES:

Enter a final order requiring Dr. Toma to repay $2,047.72 to the Department pursuant to Section 409.335, Florida Statutes (Supp. 1980).

DONE and RECOMMENDED this 15th day of October, 1981, in Tallahassee, Florida.

MICHAEL P. DODSON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1981.

ENDNOTES

1/ The Department's fiscal agent for Medicaid claims. Section 10C-7.37, Florida Administrative Code. Department's directions. The notice to Dr. Toma sent on March 31, 1981 states in part:

2/ A party may also wait until a final order has been entered by the agency and then attack the rule on constitutional grounds in a district court of appeal during review of the final order. Rice v. Department of Health and Rehabilitative Services, 386 So.2d 544) 548 (Fla. 1st D.C.A. 1980).

COPIES FURNISHED:

Robert A. Weiss, Esquire Medicaid Staff Counsel Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Suite 322

Tallahassee, Florida 32301

John F. Stroud, Esquire

503 East Monroe Street Jacksonville, Florida 32202

Docket for Case No: 81-001289

Orders for Case No: 81-001289