STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3310

)

MARTA S. GARCIA-LAVIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on May 10, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert Weiss, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard, Suite 406

Tallahassee, Florida 32301

For Respondent: Marta S. Garcia-Lavin, pro se

590 East 25th Street, Suite 401 Hialeah, Florida 33013

The issue for determination at the final hearing was whether the Petitioner Department of Health and Rehabilitative Services is entitled to a refund of

$7,212.06 paid to the Respondent Marta S. Garcia-Lavin, M.D., for psychiatric services provided to medicaid patients between January 3, 1980 and October 5, 1980.

At the final hearing Robin Olmstead, medicaid program specialist, and Terry

1. Davis, medicaid auditor, testified for the Department. Petitioner's Exhibits 1-3 were offered and admitted into evidence. The Respondent Garcia-Lavin testified on her own behalf and Respondent's Exhibits 1 and 2 were offered and admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   At the final hearing, the parties agreed to the following facts:

   
   

   1. The Respondent Garcia-Lavin is not presently, nor has she been at any time in the past, a board eligible or board certified psychiatrist; the term "board" referring to the American Board of Psychiatry or the American Osteopathic Board of Neurology and Psychiatry.

   2. In September, 1981, the Department sent to all providers of medicaid psychiatric services, including the Respondent Garcia-Lavin, a letter requesting verification of board certification or eligibility. The Respondent received her letter and informed the Department that she was not a provider of psychiatric services.

      
      

   3. Subsequent to the receipt of this letter, the Respondent Garcia-Lavin stopped billing the state for psychiatric services provided by her to medicaid patients.

      
      

   4. Pursuant to a medicaid program audit, the Department determined that between January 1, 1980 and October 5, 1980, the Respondent was paid $7,212.06 for medicaid psychiatric services provided when she was ineligible to participate in the program.

      
      

   5. On July 8, 1982, the Department notified the Respondent Garcia-Lavin that the billings during this ten-month period were improper, represented overpayments and demanded repayment of such monies.

      
      

   6. The Respondent Garcia-Lavin does not dispute that she was ineligible to participate in the program. Her position however, is that once the Department notified her that she was ineligible she stopped billing the state, and, had the Department notified her earlier, she would not have seen the patients in question. Due to the Department's failure to notify her of her ineligibility, the Respondent asserts that she should not be required to reimburse the Department for patients seen prior to such notification.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   8. Pursuant to Rule 10C-7.38(4)(a)8., Florida Administrative Code, payments for psychiatric services provided to medicaid recipients ". . .shall be made only to Board candidates or Board certified psychiatrists." A "Board" certified psychiatrist" or "Board candidate" is a state licensed physician certified as provided by Rules 10C-7.38(1)(h) and (i), Florida Administrative Code. Since these rules were in effect between January 1, 1980 and October 5, 1980, the Respondent was ineligible to participate in the medicaid program and monies paid to her during this period for treatment of psychiatric medicaid patients must be reimbursed to the state.

      
      

   9. The Respondent's contention that the Department should have notified her of the applicable rule prior to her participation in the program is without merit. The Department provided notice of the law's requirements through promulgation of the rules, supra. Had the Respondent entered into a provider agreement with the Department, a duty would have been placed on the Petitioner to notify her of major changes in medicaid rules. However, such agreement was not executed in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That a Final Order be entered by the Department of Health and Rehabilitative Services, requiring the Respondent Marta S. Garcia-Lavin to reimburse $7,212.06, which represents the sum of improper payments made between January 1, 1980 and October 5, 1980.

DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

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 20th day of May, 1983.

COPIES FURNISHED:

Robert Weiss, Esquire Department of Health and Rehabilitative Services Suite 406

1323 Winewood Boulevard

Tallahassee, Florida 32301

Marta S. Garcia-Lavin, M.D.

590 East 25th Street, Ste. 401 Hialeah, Florida 33013

Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003310

Orders for Case No: 82-003310