STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1635

)

MANUEL R. MARTINEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held in this cause before

1. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Green Cove Springs, Florida, on October 7, 1981.

   
   

   APPEARANCES

   
   

   For Petitioner: Robert Weiss, Esquire

   Medicaid Program Office

   1317 Winewood Boulevard, Suite 233

   Tallahassee, Florida 32301

   
   

   For Respondent: Manuel R. Martinez, M.D., pro use One Doctors Drive

   Green Cove Springs, Florida 32043

   
   

   The Petitioner initiated this proceeding to seek a refund of sixteen hundred seventy-six dollars and ninety-nine cents, representing alleged excess new patient office visit claims submitted by the Respondent for medicaid services provided patients on or after January 1, 1979, and paid by medicaid through October 27, 1980. The Petitioner is specifically alleging that the Respondent billed and was paid for more than one "new patient office visit" for the same recipient patient during that period of time. The Petitioner alleges that a total of 337 excess new patient office visit medicaid claims were submitted by the Respondent. The Petitioner takes the position that if a recipient/patient was seen for an initial office visit prior to the beginning of the review period of January 1, 1979, then that person is considered to be an established patient for the purpose of evaluating payments for medicaid office visits during the review period encompassed by the above dates. The Respondent takes the position that when a patient comes in with a different illness or complaint from that when initially seen, then that person constitutes a "new patient" for purposes of the additional medicaid charges permitted to be paid to the doctor for such new patients.

   The Petitioner presented one witness and two exhibits and the Respondent presented one witness. The parties requested the opportunity to file proposed findings of fact and conclusions of law subsequent to the hearing. Only the Respondent availed himself of that opportunity. The issue is thus whether the three hundred and thirty-seven patient visits in question were "new patient visits" and thus whether the fees charged for them to the Petitioner were appropriate.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a medical doctor practicing in Green Cove Springs. He has been a "medicaid provider" for a number of years for purposes of this proceeding and the rules related hereto. The review period for medicaid claims submitted by health care providers relates to claims for services rendered submitted to the Petitioner on or after January 1, 1979, and paid by medicaid through October 27, 1980. (See Chapter 10-7, Florida Administrative Code.) The Petitioner presented Mr. Alex Szarto, a Florida Medicaid Program Monitor in the investigatory section of the Medicaid Program Integrity Office of the Petitioner. This witness has had twenty-five years' experience in performing

      such field auditing for a private insurance company. He established through his testimony, and Exhibit 1, that the Respondent had claimed seven hundred and three initial patient visits for payment from medicaid during the subject review period. The witness demonstrated that three hundred thirty-seven of those patient visits claimed were not initial visits, but were patients who bad already been seen during that same review period. The additional initial patient charge was claimed for these three hundred thirty-seven previously seen patients as well as for the remaining four hundred and two patients involved who were actually seen for the first time. The Respondent thus billed the Petitioner one thousand six hundred seventy-six dollars and ninety-cents for new patient charges for these three hundred thirty-seven patients whom he had seen at a previous time. Upon cross-examination the witness conceded that a hypothetical patient with an "ant bite" two years previously who then comes in with a totally unrelated complaint, such as a back problem, possibly should be considered under the medicaid code contained in the Rule cited below representing comprehensive re-evaluation or reexamination (and so charged for), but the witness opined that medicaid reimbursement payment rules do not consider such contingencies, rather merely allowing additional billing if a patient is a totally new patient, rather than an established one.

      
      

   2. The Respondent began treating medicaid patients in approximately February, 1979. He stated that at the medical office where he was formerly associated in practice, that the insurance clerk for the office informed him that a new patient means a patient who comes in with a different illness, even if that patient had been seen previously for another problem. Subsequently thereto, the clerk for insurance matters in his present office attended a seminar in August, 1980, and, based upon knowledge she gained there, also informed him that for medicaid purposes a new patient means a patient who comes in with an entirely new condition or complaint than that experienced with a past visit. The doctor believes that this seminar was taught by a representative of the Petitioner, but he was unable to state definitively if that was the case.

      
      

   3. In billing these patients as new patients, the doctor acted in the reasonable belief that he was entitled to do so based upon these instructions. He established without question that he had no intent to defraud the medicaid program or the Petitioner. He also established that he had in the past saved the medicaid program and the Petitioner a great deal of money in potential claims by not re-checking all medicaid patients a week after he initially saw

      them, as he is entitled to do. His medicaid claims have never been questioned before this occasion. The doctor genuinely felt that he was following appropriate medicaid procedure codes, relying on the judgment of the experienced insurance clerk in his office, which he in turn felt was predicated on instructions she received from a representative of the Petitioner. The Respondent maintains that a representative of the Petitioner instructed his insurance clerk regarding the processing of medicaid claims and he states he was advised by that instructor that a new illness meant a new patient."

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

      
      

   5. Section 409.266, regarding medical assistance, provides generally that the Department is designated as the state agency responsible for administration of medicaid funds under Title XIX of the Social Security Act. It is authorized to provide payment to any person for medical services when that person is determined by the Department to be categorically eligible. This section additionally provides that the Department may enter into agreements with an appropriate agent or "provider" to supply a comprehensive range of health care services. Pursuant to this statutory mandate Section 10C-7.38, Florida Administrative Code (Physician Services), was enacted implementing the above statutory authority and providing in pertinent part:

      
      

      1. Definitions--as used in this section.

         * * *

         1. "New patient" means one new to the physician, office, or facility. The initial comprehensive history and examination 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.

         
         

   6. Subsection (4), paragraph (a) provides:

      
      

      (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 reimbursable within certain limitations.

      
      

   7. Thus, as the Petitioner's evidence establishes, the Florida Medical Association's 1975 Relative Value Studies, incorporated in the above Rule, establish an additional charge for the initial visit of a particular patient, with a lesser charge for subsequent follow-up visits. No distinction is made in the above Rule, in defining new or established patients, with regard to whether a patient coming a second time to a doctor's office has the same illness, injury or condition he had at the initial visit, or a different one. This Rule clearly provides that the illness or condition a patient has on one visit, as related to that of another visit, is irrelevant in determining whether the patient is a new one or an established one for billing purposes. The Rule obviously indicates a new patient to be one new to that physician's office. An established patient

      means one the physician knows or has seen or whose records are normally available. The Respondent herein did not refute the showing by the Petitioner that the records of these three hundred and thirty-seven patients were "normally available" since he had already seen those patients, had billed an initial visit charge for them in the past, and had at least some modicum of medical records pertaining to them. The Respondent did not refute the demonstration by the Petitioner's evidence and testimony that he had previously seen, and billed for initial visits, these three hundred thirty-seven patient/recipients, rather the doctor demonstrated that these second initial visit billings were due to his belief that when a patient came after a substantial period of time with a different illness or condition that that patient could be treated as a new patient for purposes of medicaid claims.

      
      

   8. That belief is a mistaken one. The plain meaning of the Rule makes no distinction regarding a patient who visits a doctor initially and then comes in at a later time with a different condition and one who visits the doctor on multiple occasions with the same condition. The former is no more a "new patient" than is the latter with regard to the later visits. "New patient" clearly means, as subsection (t) above indicates, one new to the physician's office or facility, as compared to an "established patient" which means one known to the physician or one whose medical records are normally available. Testimony and evidence propounded by both the Petitioner and Respondent established that the doctor had available medical records regarding the three hundred thirty-seven patients in question, as the fact that the filed claims regarding care or treatment given these patients obviously establishes. Thus, they are within the category of established patients. The Rule makes no distinction regarding the remoteness in time of the initial visit nor the difference in condition or illness between the first and second visits. There is no question that the doctor had no fraudulent intent, since the Respondent established that he was acting in good faith reliance on an interpretation provided him by his insurance clerk who represented to him that that interpretation was that of the Department.

      
      

   9. The fact remains however and it must be concluded, that the Respondent erroneously billed the higher initial patient charges for these three hundred thirty-seven patients and therefore has, albeit unintentionally, engaged in excessive billing of the Petitioner. He thus must be required to refund the sum of sixteen hundred seventy-six dollars and-ninety-nine cents representing the overpayment he received for care and treatment of these patients.

RECOMMENDATION

Having considered the foregoing findings of fact, conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore

RECOMMENDED that the Respondent, Dr. Manuel R. Martinez, be required to refund to the Petitioner the sum of sixteen hundred seventy-six dollars and ninety-nine cents, representing excess new patient charges submitted to the Department, which refund shall be accomplished within sixty (60) days of the date of the final order entered herein.

DONE AND ENTERED this 15th day of January, 1982, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1982.

COPIES FURNISHED:

Robert Weiss, Esquire Medicaid Program Office 1317 Winewood Boulevard

Suite 233

Tallahassee, Florida 32301

Manuel R. Martinez, M.D. One Doctors Drive

Green Cove Springs, Florida 32043

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 81-001635

Orders for Case No: 81-001635