STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1180

)

ROBERTO C. FRAGA, M.D. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 19, 1982, in Miami, Florida.

Petitioner Department of Health and Rehabilitative Services was represented by Robert A. Weiss, Esquire, Tallahassee, Florida, and Respondent Roberto C. Fraga was represented by Bruce M. Boiko, Esquire, Coral Gables, Florida.

On March 19, 1982, Petitioner advised Respondent that during the period from January 1, 1980, through March, 1982, Respondent had improperly billed the Medicaid Program for psychiatric services and had been erroneously paid

$38,252.75 for such services. Petitioner requested that Respondent repay such amount, and Respondent timely requested a formal hearing on Petitioner's request for reimbursement. Accordingly, the issue for determination is whether Petitioner is entitled to reimbursement for its payments to Respondent for psychiatric services rendered to Medicaid recipients.

Petitioner presented the testimony of Robi Olmstead and Terry Davis. Additionally, Petitioner's Exhibits numbered 1 through 6 were admitted in evidence.

Respondent testified on his own behalf and presented the testimony of Dr. Esteban Valdes-Castillo. Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties have submitted posthearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. On February 4, 1980, the Office of Medicaid Quality Control advised Respondent that a review of his Medicaid claims revealed that he billed the Medicaid Program for psychiatric services and further advised him that only

   Board-certified or Board-eligible psychiatrists were entitled to bill the Program for such services. The letter further requested that Respondent provide Petitioner with a copy of his Board certification. (Although the letter admitted in evidence bears the date of February 4, 1979, it is obvious that the date contains a typographical error, since the letter pertains to services previously rendered in April of 1979, and refers to a rule which became effective January 1, 1980.)

   
   

2. By letter dated February 8, 1980, Respondent replied, by advising Petitioner that he was neither Board-certified nor Board-eligible. Respondent included in his letter a recitation of his extensive experience and qualifications as a psychiatrist.

   
   

3. In spite of Petitioner's failure to reply to his letter or to authorize him to do so, Respondent continued to bill Petitioner for psychiatric services rendered to Medicaid recipients, and Petitioner continued to pay Respondent's claims.

   
   

4. During the summer of 1981, Petitioner determined that ineligible psychiatrists were billing the Medicaid Program for psychiatric services rendered to Medicaid recipients. In order to ascertain those qualified to bill the Program, form letters were sent to all providers of psychiatric services requesting documentation of Board eligibility or Board certification and further advising that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program. On August 5, 1981, that form letter was sent to Respondent. On August 11, 1981, Respondent replied to the August 5 form letter by again advising Petitioner that he was not Board-certified or Board-eligible and his extensive background and qualifications as a psychiatrist.

   
   

5. Although no reply was made to his August 1981 letter to Petitioner, Respondent continued to bill the Medicaid Program for psychiatric services, and Petitioner continued to pay Respondent's claims.

   
   

6. Respondent is not presently, and has never been, a Board-certified psychiatrist or a candidate for Board certification.

   
   

7. During the period from January 1, 1980, through February, 1982, Respondent billed for and was paid $38,252.75 by the Medicaid Program for providing psychiatric services to Medicaid recipients.

   
   

8. Petitioner never advised Respondent that he was entitled to bill the Medicaid Program for providing psychiatric services to Medicaid recipients notwithstanding the fact that he was not a Board-certified psychiatrist or a candidate for Board certification.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner is statutorily responsible for the administration of the Florida Medicaid Program, specifically, protecting the integrity of the Program. Sections 409.266(1) and (6)-(9), Florida Statutes.

11. Effective January 1, 1980, Section 10C-7.38(4)(a)8, Florida Administrative Code, has provided that "Payment for psychiatric services shall be made only to Board candidates or Board certified psychiatrists."

    
    

12. Respondent urges that the doctrine of equitable estoppel should be invoked against Petitioner to bar it from asserting its claim. This doctrine rests upon three basic premises: (a) that one party by words or conduct has caused another to believe that a material fact or a material state of the law exists, (b) the party misled must have relied on this representation, and (c) the position of that party must have been changed as a result of reliance upon that state of affairs. Davis and Sons v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1979); Greenhut Construction Co. v. Knott, 242 So.2d 517 (Fla. 1st DCA 1971). Equitable estoppel maybe invoked against the State only under exceptional circumstances. North American Company v. Green, 120 So.2d 603 (Fla. 1960).

    
    

13. The facts of the instant case do not justify application of the doctrine of equitable estoppel against Peti- tioner. The record reflects that Respondent was advised of the limitations on billing for psychiatric services under the Medicaid Program on February 4, 1980, one month after the effective date of Section 10C-7.38(4)(a)8, Florida Administrative Code. Although, by his own admission, Respondent was aware that he was not qualified to bill for psychiatric services pursuant to that administrative rule, he continued to bill and receive payment for those services. The record does not reflect that Petitioner advised Respondent that, notwithstanding the limitations imposed by the new rule, he was entitled to bill the Medicaid Program for psychiatric services.

    
    

14. Petitioner's continued payment to Respondent for services does not constitute "misleading" behavior sufficient to invoke the doctrine of equitable estoppel against Petitioner. See Southwest Community Mental Health Center v. Department of Health and Rehabilitative Services, Case No. 82-106PH, Final Order December 6, 1982. Respondent was specifically advised of the limitations placed upon billing for Medicaid psychiatric services. Nevertheless, he continued to bill and receive payment for such services. The fact that Petitioner, due to the size and complexity of the Medicaid Program, failed to pre-audit Respondent's claims, thereby improperly paying him for services for a period of time, does not give rise to an estoppel. Effective January 1, 1980, the law prohibited Respondent from billing Medicaid for psychiatric services, and Petitioner advised him in written form twice that he was not entitled to receive payment.

    
    

15. Respondent also argues that Petitioner has waived the requirements of Section 10C-7.38(4)(a)8, Florida Administrative Code. This argument fails for the same reasons that Respondent's estoppel argument fails. Petitioner expressly and in writing advised Respondent twice of the requirements of the law, and Respondent has failed to show that Petitioner expressly or impliedly waived enforcement of its regulations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing Respondent to reimburse

to Petitioner the sum of $38,252.75 for payments received by him for psychiatric

services rendered from January 1, 1980, through February, 1982.

DONE and RECOMMENDED this 15th day of March, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 March, 1983.

COPIES FURNISHED:

Robert A. Weiss, Esquire Medicaid Program Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard,

Suite 233

Tallahassee, Florida 32301

Bruce M. Boiko, Esquire

1000 Ponce de Leon Boulevard, Suite 212

Coral Gables, Florida 33134

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-001180

Orders for Case No: 82-001180